McLachlan v R [2014] NZCA 462 (19 September 2014)

Last Updated: 9 October 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA246/2014 [2014] NZCA 462
BETWEEN	SCOTT ANTHONY MCLACHLAN Appellant
AND	THE QUEEN Respondent

Hearing:	4 September 2014
Court:	Ellen France P, Asher and Clifford JJ
Counsel:	M W Ryan for Appellant M D Downs for Respondent
Judgment:	19 September 2014 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The appellant, Scott McLachlan, was found guilty by a jury in the District Court at Auckland in December 2013 on five charges of dishonesty involving the theft by internet transfer of some $11,734.68 from his former wife’s bank account.^[1]
[2] Mr McLachlan was sentenced by Judge Ronayne, the trial Judge, to eight months’ home detention and ordered to pay reparation equal to the amount stolen.^[2] Mr McLachlan now appeals his conviction but not his sentence.^[3]
[3] Mr McLachlan says that the Judge made errors in law that resulted in a miscarriage of justice when, in his summing up to the jury, he commented on the issue of memory and on the fact that Mr McLachlan did not give evidence at trial.

Facts

[4] Mr McLachlan separated from his former wife, Ms McLachlan, at the end of 2005. A lengthy custody dispute followed. During that period Ms McLachlan received the domestic purposes benefit.
[5] In late 2006 Mr McLachlan commenced a relationship with a woman, Arnika Stillman, whom he had hired in 2005 as a nanny to assist him when the three children were from time to time living with him.
[6] The custody dispute resolved, Ms McLachlan and the children moved permanently to Australia in July 2008. Notwithstanding that move, by mistake Ms McLachlan’s domestic purposes benefit continued to be paid into her New Zealand ASB bank account until March 2009. Ms McLachlan used the ASB account for some time after she moved to Australia. She then stopped using it. She did not receive bank statements for that account in Australia.
[7] Between October 2008 and April 2009, $11,734.68 was transferred from Ms McLachlan’s ASB account into three accounts belonging to Mr McLachlan.
[8] In May 2009 Ms McLachlan was advised by Work and Income New Zealand (WINZ) that she would need to repay the amount of domestic purposes benefit, $15,000, mistakenly paid to her since she had moved to Australia permanently in 2008. She then became aware of the funds transferred. She knew she had not made those transfers.
[9] In 2010, Ms Stillman’s relationship with Mr McLachlan, with whom she had by then had three children, came to an end. Ms Stillman contacted Ms McLachlan and informed her that Mr McLachlan had redirected and opened Ms McLachlan’s mail, had had Ms Stillman impersonate Ms McLachlan to obtain internet access to Ms McLachlan’s account and had then taken money from her account. Ms McLachlan contacted the police, and provided the same information to the police. Ms Stillman was cautioned regarding her involvement in these events and agreed to give evidence against Mr McLachlan.
[10] Mr McLachlan was interviewed by the police in April 2011. He denied any offending. He said that Ms Stillman had been responsible for defrauding Ms McLachlan, as she had also been responsible for defrauding him.
[11] At Mr McLachlan’s trial there was no dispute that the sum of $11,734.68 had been transferred out of Ms McLachlan’s ASB bank account and into bank accounts in Mr McLachlan’s name or controlled by him. The issue was who was responsible for those transfers, Ms Stillman or Mr McLachlan.
[12] Mr McLachlan’s defence, reflecting his statement to the police, constituted an attack on Ms Stillman and Ms McLachlan.
[13] The cross-examination of Ms Stillman by Mr McLachlan’s trial counsel, Mr Godinet, centred on the propositions that:

• (a) Ms Stillman was Mr McLachlan’s office manager and in that capacity had access to his bank accounts;
• (b) she had redirected Ms McLachlan’s mail; and
• (c) she had accessed Ms McLachlan’s bank accounts and transferred funds from there into Mr McLachlan’s bank accounts and then to herself.

[14] Mr Godinet mounted an extensive challenge to Ms Stillman’s credibility. He put to her a range of documents, including bank statements, emails and invoices, designed to show that she had the opportunity to defraud Mr McLachlan, and the ability to do so. He focussed on amounts that had been transferred from Mr McLachlan’s bank accounts to Ms Stillman’s bank account in support of the proposition that it was Ms Stillman who was responsible for stealing money from Ms McLachlan.
[15] In cross-examining Ms McLachlan, Mr Godinet advanced the proposition that she had, in effect, knowingly taken funds not meant for her from the ASB bank account in question. Ms McLachlan denied that.

The Judge’s summing up

[16] The Judge summed up in the orthodox manner. He first addressed general issues, including the burden and standard of proof. He then directed the jury on the legal elements of the charges, using a question trail to help the jury follow his summing up and to structure their consideration of their verdicts. In the third part of his summing up he dealt with matters relating to the evidence. It was in this part of the Judge’s summing up that he made the remarks upon which this appeal is based.
[17] In that section of his summing up, and as relevant, the Judge addressed the issue of credibility, the significance of Mr McLachlan not having given evidence, and the issue of memory.
[18] His remarks on credibility included the following:

[43] Credibility of a witness can be assessed on two broad bases and they are, the credibility of the witness personally and, the second basis is the credibility of the story they tell. As to the first of those, you will consider such things as the demeanour, but with the caution that I have just mentioned. Consistencies and any inconsistencies or changes in evidence. Any reasons to lie. Refusal to make a concession when you think concession might be due. Memory of the witness and the witness’ age and opportunity to observe the material facts are matters to bear in mind also.

[44] I suggest that you look carefully at the evidence of Ms Stillman because Mr Godinet has suggested that she has a motive to lie, essentially to avoid trouble for the part she has played. What you make of that submission and her evidence is always a matter for you.

[19] Having dealt with the issue of inferences, the Judge dealt with the fact that Mr McLachlan had not given evidence. He did so in the following terms:

[49] The accused had no obligation to give evidence. That he did not give evidence does not add to the case against him. It is for the Crown to prove his guilt and he does not have to prove his innocence. As he did not give evidence the only account that you have of what he says happened is the statement he made to the police. A practical consequence of the fact that the accused did not give evidence is that what other witnesses have said in their evidence has not been contradicted by the accused by evidence given by him in Court. For example, in cross-examining Ms Stillman, Mr Godinet suggested that she was not telling the truth. In assessing her evidence you may take into account that the accused did not give evidence to contradict her and thus be cross-examined about what she says happened.

[50] In his closing address counsel for the accused, Mr Godinet, suggested that, for various reasons, her evidence is not truthful and not to be relied upon. You may take into account that as the accused did not give evidence there is no evidence from him to support counsel’s suggestions. However, I emphasise that the accused does not have to prove his innocence and the fact that he did not give evidence does not add to the case against him.

[20] The Judge then commented on the statement made by Mr McLachlan to the police:

[51] The statement made by the accused, Mr McLachlan, to the police is part of the evidential material in the case that you must consider both for and against the accused. In deciding what weight you attach to what the accused said, you are entitled to take into account the fact that the accused was not on oath when he made the house statement and has not been cross-examined on what he said. You do not have to accept or reject everything the accused said in his statement. You may decide to accept none, some, or all of what he said.

[21] Finally, as relevant for these purposes, he addressed the issue of memory. He said:

[52] I want to talk just a little bit about memory. In view of the significance of these matters, that is memory, in the trial it may be helpful if I give you some guidance about memories in this context, given that witnesses are referring back to events that happened four or five years ago.

[53] Human memories are not permanently stored as if recorded on a tape and altered to be played back at some time later as an exact record of an event. I am sure that you are all perfectly aware of that from your own experiences. Nor are memories always completely accurate. Memory depends, in part, on knowledge and, in part, on other sources of information additional to what is recorded when an event is first experienced.

[54] There are three stages in memory, acquisition, storage and recall. The processes used with each stage influence how accurately and completely any witness to an event will later recall it. The stage at which memories are retrieved, that is when a person is asked to recall what has happened in the past, will inevitably be influenced by cues available at the time, the things that are used to jog the memory, as we sometimes say. Those cues can include the nature of the questions asked. Physical cues such as photographs, for example. Or the nature of the occasion on which you are being asked to recall. So the accuracy and comprehensiveness of any person’s recall may depend on factors such as the time that has passed since the event, the personal significance of the event, any emotive content of the event, the occurrence of other unrelated events, why and by whom the person is being asked to recall and the kind of retrieval cues that I talked about. So you need to think about those sorts of things when making a decision about particular evidence which depends for its reliability on the accuracy and comprehensiveness of a witness’s recollection of what was said and done.

Case on appeal

[22] For Mr McLachlan, Mr Ryan’s submission was that the Judge’s “memory” direction had unfairly given the Crown’s case material support, or a “tail wind” as Mr Ryan put it.
[23] Mr Ryan submitted it was central to the defence case that the credibility of both Ms Stillman and Ms McLachlan was adversely affected by their failure to recall various matters put to them by Mr Godinet at trial. Mr Ryan submitted that this was reflected by the number of occasions that the words “I don’t recall” or “I don’t remember” featured in their evidence. Mr Ryan produced a memorandum which listed numerous occasions on which the words “recall” or “remember” appeared in the transcript of evidence.
[24] The Judge’s memory directions, Mr Ryan submitted, constituted expert evidence, which had not been introduced during the trial and was therefore inadmissible. That inadmissible evidence had unfairly explained away the significance, in terms of the jury’s assessment of Ms Stillman and Ms McLachlan’s credibility, of their inability to recall and their supposed failures of memory. The result was that the Crown case had been unfairly bolstered by the Judge.
[25] Mr Ryan in argument acknowledged that the Judge’s comments on Mr McLachlan not having given evidence, and on the evidential status of his statement to the police, were by themselves not inappropriate. However they had, in a way which Mr Ryan was not able to articulate clearly, added to the prejudicial effect of the memory directions. As a result, a miscarriage of justice had occurred.
[26] For the Crown, Mr Downs acknowledged that the Judge’s memory directions were unwise but, he argued, they had not had any prejudicial or otherwise unfair effect on the trial. The Judge’s comments were largely neutral in their terms and, to a large extent, were a matter of common sense rather than being of any particular scientific or expert status. The Judge’s comments on the fact that Mr McLachlan had not given evidence were orthodox. This was a case that called for such a comment, given the way the defence case had comprised an all-out an attack on the two principal Crown witnesses.

Analysis

[27] Mr Ryan acknowledged that much of what the Judge had said about memory reflected a common sense understanding of that subject. His concern focussed on the “three stages in memory” analysis the Judge had provided to the jury. That concern, he argued, arose in the context of what he said was the significance for the defence of the poor memories of Ms Stillman and Ms McLachlan, as that went to the jury’s assessment of their credibility.
[28] As is clear from our summary of the evidence at trial, the credibility of Ms Stillman and Ms McLachlan would have been the central issue for the jury. We also acknowledge that in cross-examination by Mr Godinet both Ms Stillman and Ms McLachlan did, on a number of occasions, say they could not recall various matters.
[29] We also acknowledge that it was not desirable for the Judge to give the very specific “three-stage” memory direction to which Mr Ryan objected. A similar comment was made by this Court in DH (CA687/2012) v R.^[4] There the trial Judge had given a very similar direction on the issue of memory. That direction included the following comments, also included in the Judge’s memory direction here:^[5]

There are three stages of memory, acquisition, when you see or hear or you acquire it, storage of the memory, and then recall of that memory. The processes used with each stage influence how accurately and completely any witness to an event will later be recalled. The stage at which memories are retrieved, that is, when a person is asked to recall what has happened in the past, will inevitably be influenced by cues available at the time, the things that are used to jog the memory, as we sometimes say. Those cues can include the nature of the questions asked, physical cues such as photographs or the nature of the occasions on which you are asked to recall.

[30] As to those comments, this Court observed:

[33] [The Crown] accepts that the Judge’s statement mirrors aspects of a report issued by the Law Commission on memory theory. Some aspects of the report led to the introduction of important provisions in the Evidence Act 2006. We do not need to consider the reliability or otherwise of the report. It is sufficient for us to observe that it would have been preferable if the Judge had not included the passage from his summing up highlighted above. That information was unnecessary and would not have assisted the jury. But again it was harmless and could not have had a prejudicial effect on DH’s defence.

[31] Having carefully considered all the evidence, and in particular the references that Mr Ryan drew our attention to, we reach a similar conclusion.
[32] We note, first, that the Judge drew the jury’s attention to Mr Godinet’s challenge to the reliability of Ms Stillman’s evidence. That challenge was not so much that Ms Stillman failed to remember, but rather the submission was that she was evasive in her willingness to accept matters of fact put to her by Mr Godinet and that she lied. The Judge also referred to the significance of a refusal to make a concession where the jury thought a concession might be due.
[33] We do not think the Judge’s memory directions, and in particular the “three-stage” analysis of concern to Mr Ryan, in any way takes away from the significance in this case of those important comments by the Judge.
[34] Secondly, the general gist of the Judge’s comments on memory, including the passage Mr Ryan particularly objected to, are neutral in tone and, when analysed, simply reflect common sense. Even the “acquisition, storage and the recall” theory tells us little more than that we experience something, it becomes part of our memories, and that we actually recall that experience from time to time when prompted in a variety of ways.
[35] Whilst the words “remember” and “recall” do appear frequently in the evidence, we do not think those references have the significance that Mr Ryan argued for. Certainly, Ms Stillman’s failure to recall apparently having signed mail redirection requests was of evidential significance. Similarly, the fact that she denied sending emails that had apparently originated from her was significant. But those issues were very clearly before the jury. Many of the other references to both Ms Stillman and Ms McLachlan saying “I don’t recall” or “I don’t remember” occurred when Mr Godinet put to them a very specific date, bank account number, credit card number or like detail. Ms Stillman, in particular, said on a number of occasions that she could not recall those sorts of detail. It is to be remembered that the trial took place in 2013. Both Ms Stillman and Ms McLachlan were being asked for comments on very specific events that occurred quite some time ago.
[36] There is not, by our assessment therefore, a rational basis upon which it can be said that the Judge’s comments on memory unfairly bolstered the Crown case, gave it a tail wind or unfairly set aside what the jury would otherwise have seen to be the significance of the “poor memory” of Ms Stillman and Ms McLachlan. Nor do we think, as Mr Ryan submitted, that the juxtaposition of the Judge’s memory directions, with his comments on the fact that Mr McLachlan did not give evidence, had any adverse effect on the defence.
[37] Turning now to the Judge’s comments on the significance of Mr McLachlan not giving evidence, s 33 of the Evidence Act 2006 permits a Judge to comment on the fact that the defendant did not give evidence at trial. We agree with the Crown’s submission that this was a case where such a comment was called for. Moreover, and as the authorities Mr Downs referred to establish,^[6] the Judge’s comments were orthodox and balanced. They were fair.
[38] We note finally that Mr Godinet did not object at the end of the Judge’s summing up to any of his remarks. That fact is not conclusive in any way, but in our view is a practical reflection that these were uncontroversial remarks within an orthodox summing up.
[39] For all those reasons, therefore, Mr McLachlan’s appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Mr McLachlan faced one charge under s 23 of the Postal Services Act 1998 of opening postal articles not addressed to him without reasonable cause, one charge under s 240(1)(a) of the Crimes Act 1961 of obtaining a service by deception (internet access to Ms McLachlan’s ASB bank account) and three charges under s 249(1)(a) of the Crimes Act of using a computer system to dishonestly obtain a pecuniary advantage (the funds transfers).

^[2] R v McLachlan DC Auckland CRI-2011-004-007186, 10 April 2014.

^[3] The notice of appeal indicated the appeal was also against sentence but that was not pursued and is formally dismissed.

^[4] DH (CA687/2012) v R [2013] NZCA 670 at [33].

^[5] DH, above n 4 at [32] (emphasis omitted).

^[6] Mahomed v R [2010] NZCA 419 at [72]- [77]; R v McRae (1993) 10 CRNZ 61 (CA); R v Hines (No 3) (1998) 16 CRNZ 236 (CA); R v Bain [2008] NZCA 585 at [44(c)].