Panchal v R [2011] NZCA 483 (23 September 2011)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Panchal v R [2011] NZCA 483 (23 September 2011)

Last Updated: 29 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA636/2010 [2011] NZCA 483

BETWEEN VINAY PANCHAL Appellant

AND THE QUEEN Respondent

Hearing: 12 September 2011

Court: Randerson, MacKenzie and Asher JJ

Counsel: No appearance for or on behalf of Appellant J M Jelas for Respondent

Judgment: 23 September 2011 at 10 a.m. (On the papers)

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

[1] When this appeal was called on 12 September 2011 the appellant did not appear and was not represented by counsel. The written submissions filed by the appellant stated that he was living in India after completing his sentence and paying reparation. We indicated in the circumstances that we would deliver a judgment on the papers, based on the written submissions filed by the appellant and respondent.

Background

[2] The appellant appeals against his conviction following a jury trial in the District Court on four counts of receiving stolen property under s 246(1) of the Crimes Act 1961.[1] The appellant was ably represented at trial by Ms A Pinnock who has assisted the appellant in the preparation of his appeal. However, for reasons which it is unnecessary to recite, Ms Pinnock was unable to represent the appellant on appeal.
[3] The indictment is best explained in tabular form:

Count	Date	Address	Goods received	Complainant
1	29/10/2008	Donegal Street Avondale	Sony Bravia 32” LCD television	A Porter
2	29/10/2008	Donegal Street Avondale	Sony DVD Recorder	A Porter
3	7/11/2008	Blockhouse Bay Road Blockhouse Bay	Panasonic Vierra 42” plasma television	J Roberts
4	7/11/2008	New North Road Mt Albert	Sony Bravia 32” LCD television	M Cruz

[4] The Crown case was that a Mr Narayan was responsible for the theft of the two items from Donegal Street on 29 October 2008. Mr Narayan and a Mr Smalley were jointly responsible for the theft of the items from Blockhouse Bay Road and New North Road on 7 November 2008. The Crown further alleged that on the very day the respective thefts occurred, the appellant met with Mr Narayan and purchased the stolen items at prices well below normal market value.
[5] On 13 February 2009 the police executed a search warrant at the appellant’s home. They located the Panasonic TV stolen from Blockhouse Bay Road and the Sony DVD player stolen from Donegal Street. When spoken to by the police, the appellant stated he had purchased the Sony DVD player from an unidentified associate at a McDonald’s restaurant in Otahuhu. He also stated that he had purchased the stolen Panasonic TV on a separate occasion from the same person. He denied purchasing either of the two Sony Bravia TVs. He stated he did not know the property was stolen.
[6] At trial, the principal evidence adduced by the Crown was:

• Evidence from the owners of the stolen goods.
• Evidence from a Mr Hamid of purchasing a Sony 32” LCD TV from the appellant.
• Evidence from Mr Smalley describing his participation with Mr Narayan in the Blockhouse Bay Road and New North Road burglaries; the sale of items taken from those properties by Mr Narayan to a man he described as being “an Indian in his mid-30’s”; two transactions with the purchaser, one in a park near Hendon Avenue and another in the carpark of the KFC at Grey Lynn at which Mr Narayan and himself were present (these meetings had been preceded by text messages between Mr Narayan and the purchaser); and the transfer of a plasma TV into the motor vehicle driven by the purchaser being undertaken in a hurry with the TV being covered up by a blanket.
• Evidence of text messages between cellphones attributed to Mr Narayan and the appellant.
• Evidence of the withdrawal of cash by the appellant on the dates of the purchases of the stolen goods.
• Evidence of the items found in the search of the appellant’s property and his statements in explanation.

[7] Mr Narayan was not called to give evidence. However, the trial judge, Judge McNaughton, ruled before trial that a certificate of Mr Narayan’s convictions for the burglary of the Donegal Street property on 29 October 2008 and the burglary of the Blockhouse Bay Road address on 7 November 2008 were admissible in evidence. In each case, the certificates stated the date and place of the burglaries and recorded Mr Narayan’s guilty pleas and his convictions.
[8] In summary, the Crown case was that the items were undoubtedly stolen; they were purchased by the appellant at below market prices on the days they were respectively stolen; two of the items were later found in the appellant’s possession; and the jury could properly infer in the circumstances that the appellant must have known they were stolen.
[9] The appellant gave evidence and also called a witness to support the appellant’s assertion that he was an experienced trader in electronic goods. The appellant did not dispute that goods were stolen from the addresses and on the dates the Crown alleged. The essence of the defence case was that the Crown had not proved beyond reasonable doubt that the items received by the appellant were those stolen; there were discrepancies with regard to model numbers and, for example, in Mr Smalley’s descriptions of the size of the TVs; the appellant had not been positively identified as the purchaser of the goods; even if the Crown could prove to the required standard that the stolen items were received by the appellant, there was no proper basis to infer that he knew the goods were stolen or that he was reckless in that regard.
[10] In that respect, the appellant’s case was that he had never dealt with Mr Narayan. Rather he had dealt with a solidly-built Polynesian man called James or “the big fella”. James was a man he had met earlier and with whom the appellant had had a number of previous dealings, trading in electronic and other goods.
[11] In relation to the 29 October transaction, the appellant gave evidence that he received a text message asking whether he was interested in purchasing some goods. In consequence he was directed to go to an address in New North Road which he did after withdrawing some money. Mr Narayan was present but the appellant’s negotiations were with James from whom he purchased a Sony TV and a Sony DVD recorder. He saw nothing suspicious in the circumstances of the transaction.
[12] As to the transaction on 7 November 2008, the appellant said he had received a telephone call from James about the possibility of purchasing a TV. The appellant’s friend, Mr Hamid, was looking for a Sony Bravia TV so he went to the New North Road address. Once again Mr Narayan was there but the transaction was discussed with James. After withdrawing more money, the appellant returned to the New North Road address, paid James for a Panasonic plasma TV and a Sony TV and loaded the items into his car. On the appellant’s case, the circumstances were not suspicious. The appellant denied ever meeting Mr Narayan at the park near Hendon Avenue.

The grounds of appeal

[13] The appellant’s grounds of appeal as stated in the notice of appeal and in his written submissions are:

• (a) The Judge erred in admitting in evidence the certified copy of Mr Narayan’s convictions.
• (b) The appellant’s defence was undermined by interventions by the trial judge during defence counsel’s closing address to the jury.
• (c) The appellant did not receive a fair trial as a result of a lack of balance in the summing up.

[14] In his written submissions, the appellant refers to several places in the transcript of evidence where the Judge intervened during the giving of evidence. We assume that, by drawing our attention to these references, the appellant intended to suggest that there was unfairness in that respect.

First ground of appeal – the admission of the certificates of Mr Narayan’s convictions

[15] In his written submissions, the appellant says he accepted that the property received by him had been stolen but he neither knew nor suspected that was the case at the time. He was prejudiced by the absence of Mr Narayan at trial. It was not possible to have him confirm that he did not personally deal with the appellant and that all dealings with regard to the purchase of the goods including the text messages were between James and the appellant.
[16] The appellant’s argument at the pre-trial hearing was that the certified copies of Mr Narayan’s convictions should not be admissible because:

• (a) The occurrence of the burglaries could have been proved without recourse to the certificates;
• (b) The identity of the thief or burglar convicted was irrelevant to the trial of the receiver; and
• (c) The probative value of the certificate of convictions was outweighed by its prejudicial effect.

[17] The starting point is s 49 of the Evidence Act 2006 which provides:

49 Conviction as evidence in criminal proceedings

(1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.

(2) Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—

(a) permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and

(b) if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.

(3) A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.

[18] A certificate purporting to be signed by a judge, registrar or other officer having custody of the relevant court records is evidence of the conviction of the person charged with an offence and the particulars of the offence charged.[2] However, the evidence under s 49 may not be admitted if it is excluded by any other provision of the Act.
[19] In relation to the present case, the evidence had to be relevant to an issue[3] and the Judge was obliged to exclude the evidence if its probative value was outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding or would needlessly prolong it.[4] In conducting the balancing exercise under s 8 of the Act, the Judge was obliged to take into account the right of the appellant to offer an effective defence.[5]
[20] In his decision, the Judge recorded that the prosecution had been unable to locate Mr Narayan. He considered that the evidence of Mr Narayan’s conviction for the burglaries was highly relevant since, taken at face value, the text messages showed the appellant negotiating to buy items of stolen property directly from the burglar (Mr Narayan) on the same day the burglaries occurred. This evidence was directly relevant to the appellant’s knowledge of the origin of the property. Plainly, that evidence could not have been obtained from the owners of the stolen goods who did not know the identity of the burglar.
[21] The Judge considered that the probative value of the evidence of Mr Narayan’s convictions outweighed any risk that the accused would be unfairly prejudiced in his defence. The appellant’s proposed defence that he was dealing with someone other than Mr Narayan, who was coincidentally in possession of Mr Narayan’s cellphone, was weak and speculative. In any event, it was not known what Mr Narayan’s evidence would be if it was suggested to him that someone else sent the text messages. Finally, the Judge noted it was open for the appellant to call Mr Narayan if he could locate him.
[22] The Judge’s observation that the appellant could call Mr Narayan was not realistic given that the Crown could not locate him. However, we agree with the Crown’s submission that the evidence of Mr Narayan’s convictions was highly relevant and probative for the reasons given by the Judge. The suggestion from the appellant that the ability to cross-examine Mr Narayan might have aided the defence is entirely speculative. We are satisfied the Judge was right to conclude that the probative value of the evidence in the form of Mr Narayan’s convictions outweighed any risk of unfair prejudice to the appellant in the conduct of his defence.

Second ground of appeal – interventions during defence counsel’s closing address

[23] The Judge interrupted defence counsel during her closing address on two occasions. On the first occasion, counsel submitted to the jury that Mr Smalley had not identified the appellant as the Indian man he met in the park. She added that Mr Smalley could have identified the appellant since he was sitting in court, but he did not do so. At that point, the Judge said:

Ms Pinnock you know there’s legal rules about dock identification, I’m sorry you can’t make that submission.

[24] On the second occasion, counsel had asked the rhetorical question:

Why did Ray Narayan use other people to sell on his behalf as Smalley says? Why didn’t he sell directly?

[25] The Judge then asked whether counsel had a reference for the evidence from Mr Smalley to that effect. Counsel gave the Judge several references from the transcript of Mr Smalley’s evidence and prosecuting counsel said he could not find a reference to support defence counsel’s submission. Then, after further discussion with the Judge, defence counsel apologised to the jury, accepting Mr Smalley’s evidence had not gone quite as far as she thought.
[26] After closing addresses and before the summing up, defence counsel raised with the Judge her concerns about the interventions during her closing address. She accepted that a dock identification was not available since the usual identification procedures such as photo montages or an identification parade had not been carried out. She and the Judge agreed that she should have limited her submission to the jury on this point to saying there was no direct identification of the appellant as the Indian gentleman involved in the park near Hendon Avenue. She asked the Judge to inform the jury that there was a formal identification procedure which could have been used but was not utilised. Defence counsel also expressed concern that the Judge’s reference to counsel knowing the legal rules may have left the jury with the impression that she was trying to mislead them in some way.
[27] The Judge accepted in retrospect that he should probably not have interrupted defence counsel and said he would do his best to address the identification issue in his summing up. Defence counsel did not raise with the Judge any issue about his second related intervention with regard to Mr Smalley’s evidence.
[28] In his summing up, the Judge referred to the lack of positive identification of the Indian man referred to by Mr Smalley. He explained why he had interrupted counsel on that point and why a dock identification in the circumstances would have been worthless. The Judge also explained that there were identification processes available to the police such as photo montages and identification parades, but these processes had not been used. The Judge concluded on this point:

[79] So once again, do not speculate about what the evidence might have been. Decide the case on the evidence that you have. There is no identification of the accused. What the witness says is, “I saw an Indian man in his 30’s,” and that is as good as it gets.

[29] After the jury retired to consider its verdict, defence counsel raised several issues with the Judge about his summing up which we discuss below in relation to the third ground of appeal. One of these related to the Judge’s directions to the jury about the dock identification, but only as to a very minor detail.
[30] The interventions by the Judge during defence counsel’s closing address were unfortunate. While counsel accepted that the submissions the Judge challenged went a little too far, the better course would have been for the Judge to have noted any issues as to accuracy and discussed them with counsel on both sides in the absence of the jury after the conclusion of the closing addresses. Any inaccuracies could then have been corrected by the Judge in the summing up in a way that did not reflect adversely on counsel and, in consequence, on the appellant.
[31] Judicial interventions during the addresses of counsel should only occur in exceptional circumstances. Interventions of this type interrupt the flow of counsel’s address and may cause the jury to lose concentration at a critical stage in the trial. Where counsel is corrected in this way, the jury may interpret comments by the judge as a rebuke to counsel. This may cause the jury to lose confidence in the integrity of counsel and cause the jury to have misgivings about the extent to which they should rely on counsel’s submissions. This has obvious potential to prejudice an accused.
[32] In the present case, the first intervention was relatively brief but the second gave rise to substantial and distracting discussion of the evidence in the presence of the jury. As well, prosecuting counsel thought it appropriate to briefly address the Judge on the point. The upshot was that counsel was obliged to apologise to the jury before continuing. All of this could have been avoided if the Judge had deferred dealing with the issue until after the completion of the addresses.
[33] However, in the overall context of this trial, we are satisfied the Judge’s interventions did not give rise to any material prejudice to the appellant. The Judge dealt fully with the identification issue in his summing up in a way which was very favourable to the appellant. Ironically, the Judge’s interventions on this issue and defence counsel’s later expressions of concern have resulted in the Judge highlighting the lack of positive identification in a way which would probably not otherwise have occurred. Any prejudice the appellant may have suffered at the time of defence counsel’s closing address was assuaged by the Judge in his summing up.

Third ground of appeal – lack of balance in the summing up

[34] We can deal with this issue briefly. The transcript of the summing up shows that the Judge dealt very fully with the case both for the Crown and the defence. Then, in response to defence counsel raising several issues with him after the conclusion of the summing up, the Judge called the jury back into court and gave further directions as requested by defence counsel.
[35] The first related to Mr Smalley’s description of the offender as “an Indian in his 30’s”. The Judge reminded the jury that there was no evidence as to the appellant’s actual age and he might not therefore be a man in his 30’s.
[36] The second issue related to the money in the appellant’s possession on 7 November 2008 when he said he purchased items at the flat in New North Road. The Judge corrected remarks he had made earlier during the summing up on this issue.
[37] The final issue related to aspects of the text messages relied on by the defence. The Judge took the jury carefully through some particular text messages relied upon by the defence, referring the jury to the documentary evidence in that respect. He explained to the jury that the defence submission was that these messages supported the inference that “the big fella” (James) dealt directly with the accused. That was because whoever was using Mr Narayan’s cellphone was directing “the big fella” to contact the appellant directly.
[38] In summary, we are satisfied the defence case was fully and appropriately covered by the Judge in his summing up, coupled with the additional directions then given at defence counsel’s request.

Other grounds

[39] In his submission, the appellant drew our attention to some interventions by the Judge during evidence. We are not persuaded that any of these interventions was inappropriate. While a Judge should exercise some circumspection in intervening during evidence, it is the Judge’s obligation to do so where necessary to clarify evidence or to correct inaccuracies.

Conclusion

[40] For the reasons given, all the grounds for appeal fail. We are satisfied the appellant received a fair trial. This was a strong Crown case. The defence position was put fully before the jury and there was sufficient evidence upon which the jury could reach its verdicts. No miscarriage of justice has resulted.
[41] The appeal against conviction is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Panchal DC Auckland CRI-2009-004-3553.
[2] Evidence Act 2006, s 139(1) and see Okeby v R [2010] NZCA 519.
[3] Evidence Act 2006, s 7.
[4] Evidence Act 2006, s 8.
[5] Evidence Act 2006, s 8(2).