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Court of Appeal of New Zealand |
Last Updated: 18 December 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
11 November 2014 |
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Court: |
Miller, Lang and Clifford JJ |
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Counsel: |
S G Vidal for Appellant
J E Mildenhall for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
[1] Mr Marks was found guilty by a jury in the Invercargill District Court on a charge of perjury. Judge P Moran fined him $5,000.[1] He now appeals against conviction.
[2] The notice of appeal was filed within time but, in error, related only to sentence. That error was not detected until after the time for filing an appeal against conviction had expired.
[3] There is no prejudice to the Crown in an extension of time being granted, and we did not take the Crown to object to the application. We grant an extension accordingly.
Background
[4] The perjury charge related to evidence that Mr Marks gave at a hearing before Judge Turner in the Queenstown District Court on 6 June 2012. On that date Mr Marks was facing a charge of driving with excess breath alcohol on a third or subsequent occasion.[2] Although he had originally denied the charge, he entered a guilty plea on the day of the defended hearing.
[5] The entry of the guilty plea meant that s 129 of the Sentencing Act 2002 required the Judge to determine whether Mr Marks was the owner of the Mazda motor vehicle in which he had committed the offence. If he was, the Judge was required to order that the vehicle be confiscated and sold.[3] The proceeds of sale would be returned to Mr Marks after deducting the amount necessary to pay the debts described in s 137(3) of the Sentencing Act.
[6] Mr Marks was required to give evidence on oath regarding the issue of his ownership of the vehicle. He told the Judge he had sold the vehicle approximately a month earlier to a work colleague, Mr Godfrey, for $2,000 cash. He said Mr Godfrey had taken possession of the vehicle, and he believed that the registration of the vehicle had been changed into Mr Godfrey’s name. When the Judge asked Mr Marks if he had signed any papers, he said he had signed a form that Mr Godfrey had “posted in the mailbox”. He said he had sold the vehicle because he was not able to use it, and needed cash.
[7] As a result of Mr Marks’ evidence the Judge did not make an order that the vehicle be confiscated. He fined Mr Marks the sum of $800, plus court costs of $132.89, and disqualified him from driving indefinitely.[4] Judge Turner also made an order prohibiting Mr Marks from having an interest in a motor vehicle for a period of 12 months.[5]
[8] The case finished at approximately 12.15 pm. At 1.20 pm that afternoon the police officer in charge of the case, Constable Clarke, drove to Mr Marks’ address with another police officer, Sergeant Gill. When the two officers arrived, they saw Mr Marks standing in the driveway of the address talking to another person. The Mazda vehicle was also parked in the driveway.
[9] When Constable Clarke spoke to Mr Marks, he confirmed he had sold the vehicle to Mr Godfrey for the sum of $2000 in cash. He also gave Constable Clarke Mr Godfrey’s cellphone number. Constable Clarke then took a photograph of the vehicle in the driveway of Mr Marks’ address, and the officers left the property.
[10] Constable Clarke spoke to Mr Godfrey approximately 40 minutes later, at 2.05 pm. Thirty minutes later he made enquiries with the New Zealand Transport Agency (NZTA), the agency responsible for maintaining motor vehicle registration records in New Zealand. NZTA’s database showed that Mr Marks was still the owner of the Mazda vehicle at that time.
[11] On the morning of 7 June 2012, Constable Clarke went to Mr Godfrey’s address in Arrowtown. He discovered the Mazda vehicle parked at the address, and took a photograph of it. Subsequent enquiries with NZTA revealed that Mr Godfrey had gone to the NZTA at about 4.05 pm the previous day, and had lodged a form declaring that he was the owner of the vehicle.
The charge
[12] The charge initially alleged that Mr Marks had committed perjury by falsely stating on oath that he had disposed of the Mazda motor vehicle prior to 6 June 2012, and no longer had possession of it. During the trial, the Judge required the Crown to amend the charge so that the allegedly false statement related solely to the assertion that Mr Marks had disposed of the vehicle prior to 6 June 2012.
Grounds of appeal
[13] Ms Vidal, who was also Mr Marks’ trial counsel, advances three grounds of appeal on his behalf:
(a) The trial was procedurally unfair.
(b) The trial Judge erred in law in applying s 112 of the Crimes Act 1961.
(c) The jury’s verdict was unreasonable.
Was the trial procedurally unfair?
[14] This issue arises out of the fact that the Crown originally indicated it would call Mr Godfrey to give evidence on behalf of the Crown. On the evening prior to the trial, however, the prosecutor told Ms Vidal that the Crown would not be calling him as a witness.
[15] Counsel saw Judge Moran about this issue before the trial commenced the next morning. The prosecutor advised the Judge that the Crown had reservations about the veracity of Mr Godfrey’s evidence, and would not be calling him as a Crown witness for that reason. This left Ms Vidal in a position where she needed to decide whether or not to call Mr Godfrey as a witness for the defence.
[16] Not surprisingly, Ms Vidal viewed Mr Godfrey as an essential witness from the perspective of the defence. Mr Godfrey could confirm Mr Marks’ evidence to Judge Turner on 6 June 2012 that he had sold the vehicle to Mr Godfrey several weeks earlier. Given that Mr Godfrey had been a Crown witness up until this point, however, Ms Vidal had not interviewed him prior to trial with a view to calling him as a witness for the defence.
[17] When counsel discussed the issue with Judge Moran, Ms Vidal said she was concerned that the Crown’s view of Mr Godfrey’s evidence meant that he was at peril of incriminating himself if he was to give evidence for the defence. For that reason she said she did not consider it appropriate to call him as a witness unless he had first received independent legal advice.
[18] The Judge then took the somewhat unusual step of interviewing Mr Godfrey in his chambers in the absence of counsel. Having done so, the Judge advised counsel that he did not consider Mr Godfrey to be at risk of incriminating himself if he gave evidence for the defence. After the Crown had closed its case and the Judge had dismissed an application by Mr Marks for discharge under s 347 of the Crimes Act 1961, Ms Vidal called Mr Godfrey as the first witness for the defence.[6]
[19] Ms Vidal told us that Mr Godfrey’s evidence came up to brief, and was broadly along the lines of an earlier statement he had made to the police. This was to the effect that he had purchased the vehicle from Mr Marks approximately a month prior to 6 June 2012 for $2000 in cash. Mr Godfrey said he had left the vehicle at Mr Marks’ address from the date he had bought it until 6 June 2012 because he did not have room to store it at his own address.
[20] Ms Vidal submits that the trial became procedurally unfair for two reasons. First, she did not have sufficient notice of the fact that the Crown would not be calling Mr Godfrey as a witness. This meant she did not have a proper opportunity to consider applying for leave to have the charge heard by the Judge sitting without a jury. Secondly, she submits that the dynamics of the trial changed as a result of the Crown’s decision not to call Mr Godfrey as a Crown witness. This occurred because, rather than being able to rely upon Mr Godfrey’s evidence as a witness for the Crown, Mr Marks was effectively required to advance an affirmative defence relying on the evidence of the witnesses that he called. She contends that this created a subtle but perceptible shift in the onus of proof from the Crown to the defence.
[21] The starting point in relation to both issues must be the fact that, as Ms Vidal accepts, the Crown was not obliged to call Mr Godfrey as a witness if it did not consider he was telling the truth. At that point the defence had to decide whether to call him as a witness. The only risk of unfairness in that context related to the very late notice of the Crown’s change in stance. Ms Vidal confirmed, however, that she did not seek an adjournment of the trial so that she could give the issue further consideration. Nor did she turn her mind to the prospect that it might be to Mr Marks’ advantage to seek a trial by a Judge sitting without a jury.
[22] This ground of appeal may have had greater strength if Mr Godfrey had departed from his brief of evidence, and had given evidence that did not assist Mr Marks’ cause. In that event Ms Vidal could justifiably have claimed that Mr Marks was unfairly prejudiced by the lateness of the Crown’s decision not to call Mr Godfrey as a witness for the prosecution. Given that Mr Godfrey came up to brief, however, we do not consider that Mr Marks suffered any unfair prejudice by the late notice of the fact that the Crown did not intend to call him as a witness.
[23] Nor do we accept that the jury would have been under the impression that Mr Marks assumed any onus of proof when he elected to call Mr Godfrey as a witness for the defence. The Judge’s summing-up contained clear directions to the jury regarding the onus and burden of proof. He specifically directed the jury that, in calling evidence, Mr Marks had not assumed any onus to prove anything at all. The jury cannot have been under any misapprehension as to where the onus of proof lay.
[24] Furthermore, we are not convinced that Mr Marks’ interests would have been better served by having the charge determined by a Judge alone rather than a jury. Some Judges may have been left in a state of reasonable doubt at the end of the case, but others may not. Comments that Judge Moran made when he sentenced Mr Marks immediately after the jury had delivered its verdict suggest he would have been a member of the former group.[7] Although the Judge’s comments no doubt prompted Mr Marks to pursue this aspect of the appeal, we do not consider it has merit.
[25] This ground of appeal fails as a result.
Did the Judge err in applying s 112 of the Crimes Act?
[26] Section 112 of the Crimes Act 1961 provides as follows:
112 Evidence of perjury, false oath, or false statement
No one shall be convicted of perjury, or of any offence against section 110 or section 111, on the evidence of 1 witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant.
[27] After the Crown closed its case, Ms Vidal applied for an order discharging Mr Marks under s 347 of the Crimes Act on the basis that the Crown had failed to provide the corroboration required by s 112. The Judge refused that application, and Ms Vidal now submits that he was wrong to do so.[8]
[28] Section 112 essentially adopts the common law requirement that evidence of the falsity of a statement must be corroborated. That is, there must be something more than one witness testifying that the statement made was false.[9] The corroboration requirement does not apply to the other elements of the offence, namely the fact that the statement was made and the defendant knew that it was false.[10]
[29] The Crown did not rely in the present case solely upon the evidence of a witness who told the jury that the evidence Mr Marks had given before the Judge was false. Rather, it relied upon circumstantial evidence to prove that Mr Marks had committed perjury when he told the Judge he had sold his vehicle to Mr Godfrey some weeks earlier. The first issue we need to determine is whether s 112 applies in cases where the prosecution relies upon circumstantial evidence to prove the falsity of the defendant’s statement.
[30] Read literally, the section is not restricted to cases where the prosecution relies upon the evidence of a witness who states that the defendant has given false evidence. It is cast in universal terms that suggest it applies to all cases involving allegations of perjury. This would obviously include cases such as the present where the prosecution relies upon circumstantial evidence to prove the falsity of the defendant’s statement.
[31] The historical reason for the rule is that “else there would be oath against oath”.[11] The rationale underpinning the principle is that it might be unfair or unsafe to convict an individual for perjury on the basis that only one other person suggests that what he or she has earlier said on oath was false. The validity of this proposition has been questioned on the basis that the outcome of many prosecutions may depend on resolution of conflicting evidence given by two witnesses. It has been suggested that a more logical reason for the continuation of the rule may be that an ability to obtain a conviction for perjury based on the evidence of a single witness might encourage malicious accusations of perjury. This could discourage witnesses from giving evidence.[12]
[32] If this argument is correct, it suggests that the section applies in all cases involving an allegation of perjury. If the concern is not with the potential reliability of any conviction, but rather with protecting the important role that witnesses play in the functioning of the justice system, the same concerns would apply when evidence supporting a perjury conviction is purely circumstantial.
[33] We have not been able to find any New Zealand authority directly on the point. Differing approaches have been taken in Canada and the United Kingdom, both of whose statute books contain provisions broadly similar to s 112.[13] In R v Neveu, the Court of Appeal for Quebec held that the statutory requirement for corroboration did not apply in cases where the evidence as to perjury is circumstantial.[14] The Court said:[15]
[19] If, in order to prove perjury, the Crown only bases its case on circumstantial evidence, the requirement of corroboration “of only one witness” in s. 133 Cr. C., is no longer justifiable. The very essence of circumstantial evidence, which requires that everything be considered as a whole, entails that a part of this evidence, on its own, would not be enough to permit a finding of guilt on a charge of perjury. As a result, s. 133 Cr. C. is inapplicable in the case of circumstantial evidence because it requires corroboration only when an accused can be found guilty of perjury on the evidence of only one witness.
[34] The English Court of Appeal took a different approach in R v Cooper.[16] In that case the appellant had been charged with driving whilst using a cellphone. He defended the charge on the basis that he had a “hands-free” device installed in his car, and produced a letter from the company that had installed the device indicating it had been installed prior to the date of the alleged offending.
[35] It transpired that the appellant had asked the company for a letter indicating that they had installed the device in his car. The deputy manager of the store agreed to write the letter, but as he was doing so he said he could not remember the date the device was installed. The appellant then gave the deputy manager a date that was before the date on which he was seen driving whilst talking on his cellphone.
[36] At the appellant’s subsequent trial for perjury, the Crown sought to prove the falsity of the defendant’s statement using circumstantial evidence. The deputy manager of the firm that had installed the hands-free device gave evidence that he had no independent memory of the exact date upon which the device had been installed. Instead, he produced business records indicating that it must have been installed after the appellant had been seen talking on his cellphone whilst he was driving. Based on this evidence the jury found the appellant guilty of perjury.
[37] The Court of Appeal quashed the appellant’s conviction on the basis that the statutory requirement for corroboration had not been met because the deputy manager was unable to give evidence as to the date upon which the device had been installed without relying upon business records that he himself had prepared. The alleged falsity therefore rested entirely on the deputy manager’s evidence. The Court said:
17. In our judgment the crucial features of the present case are that the evidence of falsity does not come from a witness, Mr Thomas, supported by business records made and prepared within the business independently of him. The records relied on in support of his evidence were prepared by him. Without reference to them, he could not speak to the falsity of any crucial dates. Similarly, the records, taken on their own, unexplained by him, do not establish the alleged falsity either. It is only when taken together with his evidence, and explained by him, and refreshing his own memory from them, that they do so, but self-evidently the two areas of evidence are not independent of each other. Without reference to the records he prepared himself Mr Thomas cannot establish the dates: without Mr Thomas the business records do not speak for themselves on the critical issue. In the ultimate analysis, Mr Thomas is the single source of both, and the Crown’s case against the appellant depended “solely” on his evidence.
18. In these circumstances, the statutory prohibition was contravened.
[38] We prefer the approach taken in Cooper. We consider the plain wording used in s 112 means that it has universal application in cases involving allegations of perjury.[17] We also consider there is no sound reason of policy or principle to justify a different approach being taken in cases where the prosecution relies upon circumstantial evidence to prove the allegation. As the present case demonstrates, however, a prosecution based on circumstantial evidence is generally unlikely to have any difficulty in satisfying the requirements of the section. By its nature such evidence is likely to be adduced from two or more independent sources. The only question is likely to be whether the circumstantial evidence adequately sustains the inference that the statement in question was false.
[39] In the present case, we agree with the Judge’s conclusion that the evidence adduced by the Crown clearly satisfied the requirements of the section. Two police officers went to Mr Marks’ address less than two hours after he had given evidence before Judge Turner in the District Court. Both officers saw Mr Marks standing in the driveway of the address near the motor vehicle he claimed he had earlier sold to Mr Godfrey. In addition, the NZTA representative produced records confirming that Mr Godfrey did not lodge the form declaring that he was the owner of the vehicle until just after 4 pm the same day. The Crown was entitled to rely upon the evidence of those three witnesses to prove the falsity of Mr Marks’ evidence. The Crown was therefore able to adduce evidence as to the falsity of Mr Marks’ evidence from three separate and independent witnesses. This ground of appeal fails as a result.
Was the jury’s verdict unreasonable?
[40] The test to be applied in this area of the law is well-established through the decisions of the Supreme Court in R v Owen[18] and the Court of Appeal in
R v Munro.[19] In this context the appellate court is performing a review function, and is not permitted to substitute its own view of the evidence. An appellate court will give appropriate weight to any advantages the jury may have had, including the ability to assess the honesty and reliability of witnesses.
[41] Ms Vidal’s first submission under this head was that the evidence relating to the information contained on the NZTA database did not advance the Crown case at all.
[42] We accept that the information contained on the NZTA register cannot prove the identity of the owner of a motor vehicle at any given time. It may, however, be used as evidence to prove that fact, because the parties to an agreement to buy and sell a motor vehicle will commonly take steps to ensure that the change of ownership is recorded on the register. Registration provides some assurance for the seller that he or she will not be liable in respect of future use of the vehicle by the buyer, and the buyer can thereby gain some protection against previous use of the vehicle by the seller. For that reason both the buyer and the seller have an interest in ensuring that the change of ownership is noted on the NZTA database.
[43] In the present case the timing of Mr Godfrey’s visit to the NZTA office is of more significance than the legal effect of registration. We consider the Crown was entitled to rely upon the fact that Mr Godfrey did not lodge the form notifying NZTA that he had acquired the vehicle until after Mr Marks had given evidence on 6 June 2012, and after the police had spoken to Mr Godfrey the same afternoon about his alleged interest in the vehicle. Although the defence submitted that there was an innocent explanation for the fact that Mr Godfrey had not lodged the form earlier, the jury was entitled to take a different view. It was entitled to conclude that Mr Godfrey did not do so because Mr Marks was still the owner of the vehicle when he gave evidence in the District Court.
[44] Next, Ms Vidal submitted that the jury could not reasonably reject the evidence called for the defence, particularly given the fact that the Crown did not directly challenge that evidence in cross-examination.
[45] The evidence for the defence came from two witnesses, Mr Godfrey and Mr Marks’ father. As we have already recorded, Mr Godfrey confirmed he had purchased the vehicle approximately four weeks prior to 6 June 2012. He said he had left the vehicle at Mr Marks’ address because he did not have room to store it at his own property. He also left the keys with Mr Marks so that Mr Marks could move the vehicle if he needed to. Mr Godfrey told the jury he had not got around to lodging the change of ownership form with the NZTA prior to the afternoon of 6 June 2012. He immediately took that step after the police had visited him that afternoon, however, because he did not want the vehicle to be confiscated and sold. Had that occurred, Mr Marks would have received the sale proceeds. Mr Godfrey said he was not confident he would get his money back from Mr Marks.
[46] Mr Godfrey also produced a photocopy (but not the original) of a handwritten document that purported to record the terms of the sale and purchase of the vehicle. This was dated 4 May 2012, and was signed by both Mr Marks and Mr Godfrey. Mr Godfrey also produced several receipts to prove that he had expended money on the vehicle after acquiring it from Mr Marks.
[47] Mr Marks’ father said he had sold the Mazda vehicle to his son approximately three years ago for the sum of $4,000. Mr Marks had paid his father $2,000 in cash, and promised to pay the remainder of the purchase price when he could afford it. Mr Marks’ father said his son had contacted him during the first or second week of May 2012 to advise him that he had sold the vehicle, and had some money to give him. Mr Marks’ father said that he subsequently received the sum of $1,400 in cash from Mr Marks.
[48] We do not accept Ms Vidal’s submission that the Crown failed to challenge adequately the defence witnesses. The prosecutor challenged Mr Godfrey directly regarding his version of events. After raising several issues designed to weaken Mr Godfrey’s credibility, the prosecutor put directly to him the proposition that he had never had anything to do with the Mazda motor vehicle until 6 June 2012.
[49] The prosecutor did not put it to Mr Marks’ father that his account was untrue, but he unmistakeably challenged the witness. He pointed to partiality by establishing that the father and son enjoyed an excellent relationship, and he highlighted the three year period that had elapsed without payment. This enabled him to invite the jury to disbelieve the claim that in May 2012 Mr Marks still owed his father money in respect of the purchase of the vehicle.
[50] We also consider that the jury was entitled to reject the evidence given by both defence witnesses. Juries are routinely told that issues of credibility lie squarely within their province. They are also directed that they are entitled to accept or reject all or part of the evidence given by any witness. That principle holds true so far as the defence witnesses in the present case are concerned.
[51] Furthermore, we consider that Mr Godfrey’s credibility was likely to have been undermined significantly by the explanation he gave the jury regarding the reason why he had not taken possession of the vehicle earlier. That was likely to have been an issue of some importance to the jury, because ordinarily the purchaser of a motor vehicle might be expected to take possession of it immediately. The jury would therefore have been interested to know why Mr Godfrey had left the vehicle at Mr Marks’ address for nearly a month after he had bought it.
[52] As we have already recorded, Mr Godfrey told the jury during evidence in chief that he left the vehicle at Mr Marks’ address because he did not have room to store it at his own address. In cross-examination, however, the prosecutor put to Mr Godfrey a photograph taken on 7 June 2012 showing the Mazda parked at Mr Godfrey’s property. The photograph demonstrates that Mr Godfrey’s property was large, and obviously had room to store numerous vehicles. Mr Godfrey’s response, namely that he needed to have sufficient room to be able to gain access to a pile of firewood on the property, may well have struck the jury as being somewhat lame. His evidence did not gain any support from the receipts, because they were either undated or related to transactions that occurred after 6 June 2012.
[53] Finally, Ms Vidal relies on the following remarks that the Judge made when he sentenced Mr Marks immediately after the jury delivered its verdict:[20]
[1] Mr Marks, the jury has found you guilty of deliberately telling lies to the Judge about the disposition of that vehicle. It would not surprise me to hear you say that you do not accept that verdict, but nonetheless it is the verdict of the jury and you are to be sentenced on the basis that you have been found guilty. You have no previous convictions for offences of dishonesty.
[2] The jury’s verdict would indicate that this was a deliberate and cynical attempt on your part to beat the system and that you were in it with Mr Godfrey and between the two of you cooked up a forged document. It seems to me that that is what the jury verdict has to amount to. Like you I do not agree with it but you are convicted and you are fined $5000.
[54] Ms Vidal submits that these remarks demonstrate that the Judge considered the jury’s verdict to be unreasonable, and not supported by the evidence. We do not accept this submission. Although the Judge’s remarks clearly demonstrate that he would have acquitted Mr Marks if he had been the tribunal of fact, they do not suggest he considered the jury’s verdict was not supported by the evidence. Had the Judge considered this to be the case, he would have undoubtedly discharged Mr Marks using his powers under s 347 of the Crimes Act 1961. The Judge could have taken that step even after the jury delivered its verdict.[21]
[55] In a ruling that he gave at the close of the Crown case, the Judge dismissed an application by Mr Marks for discharge under s 347.[22] Ms Vidal did not renew the application at the close of the defence case, and in our view she was correct not to take that step. It was for the jury to decide whether on all of the evidence, including that adduced by the defence, the Crown had proved the charge beyond reasonable doubt.
[56] We consider the circumstantial evidence that the Crown relied upon was sufficient to enable the jury to conclude on a reasonable basis that Mr Marks was not telling the truth when he told the Judge on 6 June 2012 that he had sold the vehicle to Mr Godfrey several weeks earlier.
Result
[57] The appeal against conviction is dismissed.
Solicitors:
Southern Law,
Arrowtown for Appellant
Crown Law Office, Wellington for Respondent
[1] R v Marks DC Invercargill CRI-2012-059-979, 9 May 2013 [Sentencing notes].
[2] Land Transport Act 1998, s 56.
[3] Sentencing Act 2002, s 129(3).
[4] Police v Marks DC Queenstown CRI-2012-059-61, 6 June 2012.
[5] Sentencing Act, s 131(2)(a).
[6] R v Marks DC Invercargill CRI-2012-059-979, 9 May 2013 [Ruling No 1].
[7] Sentencing notes, above n 1.
[8] Ruling No 1, above n 6.
[9] R v Monk CA15/95, 15 June 1995 at 4–5 and Taylor v Manu [1975] 1 NZLR 285 (SC) at 287. See also Rex v Cleland (1901) 20 NZLR 509 (CA) at 512.
[10] Compare Taylor v Manu, above n 9, at 287 and R v Rider (1986) 83 Cr App R 207 (CA) at 210 with R v Evans (1995) 102 Man R (2d) 186 (MBCA) at [48]–[49].
[11] R v Muscot (1713) 10 Mod Rep 192 at 198, 88 ER 689 (KB) at 691.
[12] See Law Commission Evidence: Reform of the Law (NZLC R55 Vol 1, 1999) at [468]; and Evidence Law Reform Committee Report on Corroboration (November 1984) at [31]. See also in the United Kingdom context Colin Tapper Cross & Tapper on Evidence (12th ed, Oxford University Press, Oxford, 2010) at 261; and United Kingdom Law Commission Criminal Law: Offences Relating to Interference with the Course of Justice (Law Com No 96, January 1979) at [2.62].
[13] Criminal Code RSC 1985 c C-46, s 133 and Perjury Act 1911 (UK) 1 & 2 Geo V c 6, s 13.
[14] R v Neveu (2004) 184 CCC (3d) 18 (QCCA).
[15] Footnote omitted.
[16] R v Cooper [2010] EWCA Crim 979, [2010] 1 WLR 2390.
[17] See R v Mills CA130/82, 15 March 1984.
[18] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
[19] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [86]–[87].
[20] Sentencing notes, above n 1.
[21] Crimes Act 1961, s 347(3).
[22] Ruling No 1, above n 6.
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