R v Paul [2021] NZDC 13585 (1 July 2021)

Last Updated: 1 August 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT CHRISTCHURCH I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2020-009-005747

[2021] NZDC 13585

THE QUEEN

v

STEVEN AMBROSE PAUL

Hearing:	1 July 2021
Appearances:	J Lancaster and J Whitcombe for the Crown J Tupaea and T Tuari for the Defendant
Judgment:	1 July 2021

ORAL JUDGMENT OF JUDGE M A CROSBIE

[1] Mr Paul is charged with wilfully attempting to defeat the course of justice in contravention of s 117(e) of the Crimes Act 1961. The informant must prove the charge to the standard of beyond a reasonable doubt. The essence of the offending is that Mr Paul lied to the Court in order to have a theft charge withdrawn. He lied to the Court in the form of lying to his counsel, who communicated that lie to the Court.

[2] The background to the matter is set out in a memorandum of admitted facts submitted pursuant to s 9 of the Evidence Act 2006. On 5 July 2019, Mr Paul failed to pay $80 of petrol at the Mobil Omarama Petrol Station (referred hereafter as “the petrol station”). Apparently, he had some cash but not enough. He went to the local police station and promised to Police that he would pay later that day. He did not. After being contacted by Police multiple times, he failed to make payment. He was

R v STEVEN AMBROSE PAUL [2021] NZDC 13585 [1 July 2021]

subsequently charged with theft and summonsed to appear in the District Court on 16 October 2019 and entered a not guilty plea to the charge.

[3] On 17 January 2020, Police were advised that Mr Paul had recently paid for the fuel. When Police checked with the petrol station, they were advised that he had not paid.

[4] On 27 January 2020, Mr Paul appeared at court and the presiding judge gave him an opportunity to pay the $80 into the Ministry of Justice account by the end of the following week. He failed to make that payment.

[5] It follows that, by this time, Mr Paul had an opportunity to both avoid a charge at all by payment and then, once charged, to avoid a conviction by payment.

[6] On 13 May 2020, he appeared in court. He advised through his counsel, at that time [name deleted], that he had paid the $80 directly to the petrol station. He further said that he had receipt for the payment but did not have it on his person. The Court indicated that it would grant leave for the charge to be withdrawn on the basis of the representation by Mr Paul that he had paid at the petrol station. The Court directed that he provide a receipt to the prosecutor within seven days. The charge was accordingly withdrawn by the prosecutor with leave of the Court.

[7] The transcript of the hearing makes it clear that the presiding judge, His Honour Judge Neave, recorded the basis on which the charge was being withdrawn. I intend to attach to my decision both the s 9 admission and the transcript but I wish to refer to the transcript. Page 4 notes that there had never been a guilty plea, with [the defendant’s counsel] then saying:

[Defendant’s counsel]: It is a matter that Mr Paul had instructed me that he has paid, he just does not have a receipt to provide me so that I can provide the Court.

Judge Neave: Well, he has either got to plead or to have a hearing, so unless somebody makes another application, so what are you asking me to do?

[Defendant’s counsel]: Perhaps if I could take instructions from Mr Paul, thank you Sir. Sir, what happened is that there is a dispute about whether payment has been made at the petrol station. The police position on the

prosecution has always been that if Mr Paul makes a payment the charge will simply be withdrawn.

Judge Neave: That is what the file notes on the 27th of January.

[Defendant’s counsel]: Yes, Sir. Mr Paul instructs he has made the payment; however, he made it directly to the petrol station and while he has a receipt he does not physically have it on him.

Judge Neave to Sergeant Scott: Well, sergeant, if I were to withdraw the charge on your application with expressly noting that has been done on the basis of Mr Paul’s representation to the Court that he has paid this into the petrol station, if it turns out that is not the case, you will be able to prosecute him for defeating the course of justice and be liable to seven years’ imprisonment?

Sergeant Scott: Yes.

Judge Neave: That would, I think, protect your position then? Sergeant Scott: Yes.

[8] [The defendant’s counsel] then took some time to explain matters to Mr Paul, the transcript says.

[9] The Court said to [the defendant’s counsel]: “They’ll have to show them the receipt if he wants to evade prosecution.” [The defendant’s counsel] acknowledged that.

[10] Ultimately, his Honour said: “So I have noted the file on the basis that Mr Paul advises that he has paid for the petrol and will provide a receipt to confirm this within seven days and on the basis that if he has misled the Court he is liable to be prosecuted for an attempt to defeat the course of justice. The charge is withdrawn by leave. That should solve your problems there if he has been telling us porkies.”

[11] The Judge’s decision does not amount to any type of direction to Police but, following that hearing. On 29 June, the petrol station confirmed that it had not received payment from the defendant and he was charged with attempting to pervert the course of justice.

[12] When he appeared in court on 13 August 2020, he was advised that he had one week to pay the money to the petrol station or that the theft prosecution would continue. On 28 August, well outside of that timeframe, he repaid the money.

[13] As at 13 August, the defendant had, of course, not entered a guilty plea to the charge.

[14] The hearing today proceeded today on a basis of an admission of facts under s 9. The prosecution case is that the admission, together with the transcript of the hearing before his Honour Judge Neave, establishes the elements of the offence to the standard to beyond reasonable doubt. The prosecution position is that, without more, the Court can clearly infer from that information that:

• (a) Mr Paul committed an act, being to instruct defence counsel to inform the Court that the amount of money stolen from the petrol station had been repaid;
  
• (b) That when he did so he was aware that legal proceedings had commenced; and
  
• (c) That when he gave instruction to counsel, he intended to prevent the Court from doing justice which, in his case, was with the instruction to council to either proceed to a hearing or not, on a not guilty plea, or obtain the benefit of no conviction on the basis of the charge being withdrawn due to the statement the payment had been made.
  

[15] In her brief closing submission, Ms Tuari said that the defence position is that Mr Paul’s evidence is that, at the time he instructed [his counsel], he genuinely and reasonably held belief that the $80 had been paid at that time. I accept that if the evidence did establish such a belief, that Mr Paul would not be guilty of the charge. Put another way, the informant would not have proved the charge to the standard of beyond reasonable doubt.

[16] Given the clear inferences that are able to be drawn from the s 9 admission, together with the transcript of proceeding in front of Judge Neave, Mr Paul’s evidence was therefore critical to the defence. It is of course trite that the defendant is not required to give or call evidence. Should he do so, he does not assume the burden of

proof. However, in this case the strong inference of knowledge needed to be disproved.

[17] Before providing a summary of my assessment of the evidence, I deal with the law. Section 117(e) makes it an offence to wilfully attempt to defeat the course of justice by providing that:

Every one is liable to imprisonment for a term not exceeding 7 years who––

...

(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

[18] The offence is not constrained to the corruption of juries or witnesses and covers all attempts to obstruct, prevent, pervert, or defeat the course of justice.1

[19] The offence has been described as “by no means problematic” and calling for “broad evaluative judgments”.2 This is because:

• (a) the boundaries of actus reus are difficult to draw;3 and
  
• (b) the concept of “the course of justice” has been described as not suited to precise definition.4
  

[20] The course of justice undoubtedly includes the administration of justice by publicly established tribunals including Courts.5

[21] The Court of Appeal held that to be liable under s 117(e) requires wilful action but not a successful or completed one.6 The act of itself does not need to be unlawful.7 Criminality is attached to actions that have the tendency and are intended to adversely

1 McMahon v R [2009] NZCA 472 at [46].

2 R v Meyrick CA 513-04, 14 June 2005 at [40].

3 At [28].

4 R v MPP [2017] NZCA 314 at [29].

5 R v Meyrick, above n 2, at [42].

6 R v MPP, above n 4, at [27].

7 At [27].

affect court proceedings.8 It must be the case that an adverse effect of court proceedings can, in fact, be an outcome that favours a defendant.

[22] There have been many cases, of course, where the attempt involves a defendant or an associated defendant persuading or dissuading someone to refrain from giving evidence or to give false evidence in order to extract a benefit for someone, being most commonly not to receive a conviction.

[23] The offence can be broken down into two components that contribute to the element that the Crown has referred to:

• (a) first, there is the actus reus, the attempt to obstruct the course of justice; and
  
• (b) second, is the mens rea, an intent to obstruct.
  

[24] Improper actions designed to avoid criminal liability may amount to an attempt to defeat justice.9

[25] The Court of Appeal in Kane v R doubted that an accused could be liable for a simple denial of guilt.10 However, if a lie goes beyond a mere denial, such as in Kane, in which the defendant lied and said another person was responsible for the offending, that is within the ambit of the offence.

[26] In Slavich v Heath the District Court considered that s 117(e) theoretically encompassed a lawyer lying to the Court, saying that a matter had been dealt with by another Court, knowing full well that it had not.11

[27] As alluded to by me this morning in conversation with, and comments to, Ms Tuari, in Kumar v R the defendant was convicted for supplying Police with a fake name.12 In Tamati v R, the defendant was convicted for attempting to set up a false

8 At [8].

9 R v Rafique [1993] 4 All ER 1, Court of Appeal at (7).

10 Kane v R [1968] NZCA 9; [1968] NZLR 787.

11 Slavich v Heath DC Auckland, 21 January 2014.

12 Kumar v R [2015] NZHC 1034.

alibi by texting to an associate asking him to tell her partner to tell Police that she had dropped him off at a friend’s address two hours earlier, an example of the type of case I referred to above.13

[28] So, in this case the defendant decided to give evidence. Where a defendant gives evidence then the Court must approach that as follows:

• (a) First, if the evidence is accepted (which in this case would establish a lack of mens rea) then I would find the defendant not guilty.
  
• (b) Secondly, if the evidence leaves me unsure, then I would have a reasonable doubt and again find him not guilty.
  
• (c) Thirdly, if I disbelieve the defendant’s evidence then I do not simply move to an assumption of guilt, instead I put that evidence to one side and look at all of the evidence that the informant presents in order to assess whether the case is proven to the stand of beyond reasonable doubt. If I find myself doing so, in this case, then for the reasons expressed already the prosecution would have discharged the onus and burden of proof. In this regard, it is trite that I can accept or reject all or part of any witnesses’ evidence.
  

[29] In this case, I have made due allowance for the fact that the giving of evidence does not come easily or naturally to some people. Courtrooms can be foreign environments and witnesses understandably nervous in a formal and unfamiliar environment. Making such allowances, however, I find the defendant to be neither credible or reliable.

[30] I had hoped the stenographers would have had the transcript of evidence in time for an oral decision this afternoon. That has not been possible and my notes are sufficient upon which to base my assessment of credibility and reliability. However, I reserve the right later to insert an analysis into the decision containing the precise aspects of the transcript that I rely on.

13 Tamati v R NZCA 117-202

[31] My assessment of Mr Paul’s credibility was such that at one point that I stopped the hearing and suggested that he speak with his counsel. This was done with the consent of the prosecution, notwithstanding that Mr Paul was undergoing cross-examination. This is an illustration of the extent of his lack of credibility and I was concerned that Mr Paul, going further, may make matters more difficult for himself. I suspect that several of his responses were such that they surprised his own counsel.

[32] Mr Paul’s position is that [his former girlfriend] had been asked by him to pay the $80 prior to 13 August 2020 and she told him that she had done so and had a receipt. Essentially, this was the basis, he said, for his conversation with [his former counsel], that the $80 had been paid. It is now accepted that [the defendant’s former girlfriend] never made such a payment. Whether she told Mr Paul that she had is critical to the basis of his belief the payment had been made. Whether or not he made such a statement to [his counsel] would be further evidence of his belief. Neither [the defendant’s former girlfriend] nor [the defendant’s counsel] were called. There is no issue that both were available to be called. Indeed, despite Police and defence cases having concluded, I allowed the defence the opportunity to consider calling those witnesses and they elected not to do so.

[33] Based on my overall assessment of Mr Paul’s evidence, I have come to the view that calling either or both [the defendant’s former girlfriend] and [the defendant’s counsel] would not have assisted his position. Indeed, I was so concerned about his veracity that I made it clear that he could be placed in an invidious position if the evidence he gave about his conversations with them was found to be false, as I find is very likely the case.

[34] Mr Paul gave confusing, inconsistent and I find false accounts of his efforts to make payments and the fact of payment. He changed his evidence several times. He described a process of payments which I find implausible. A highlight of Mr Paul’s lack of credibility is that at one stage he would have had me accept that he went into the petrol station one day on the way back to Queenstown, paid them out in full and obtained a receipt. That must have been a lie to the Court, as he later changed his evidence to say he telephoned the owner of the petrol station and paid the $80 via

Internet banking. He did not give this latter evidence either in his evidence-in-chief or cross-examination. Mr Paul was caught out several times by lies in the witness box today and new evidence that conflicted with previous accounts.

[35] His evidence and the way he gave it had all the hallmarks of someone who was not telling the truth, literally of someone who was making it up as he went along. I reject his evidence entirely and place it to one side.

[36] The defendant had the relevant mens rea if he knew that he had not paid for the petrol and the claim that he had paid would delay a finding of his guilt or, in this case, mean that there was no finding of guilt and he escaped a conviction.

[37] The defendant’s representation goes beyond a mere denial of guilt. It is analogous to Kane in which the defendant lied and said another person was responsible for the offence and to Kumar in which the defendant supplied Police with a false name, both of which go beyond a mere denial. The defendant in this matter has gone beyond saying he did not steal the fuel, which would be a mere denial. He represented that he did pay for it and he had a receipt to prove it. This is analogous to Tamati in which the defendant attempted to organise a false alibi, in this case the defendant’s exculpatory excuse was also false.

[38] I find the undisputed establish the charge beyond a reasonable doubt. I enter a conviction against Mr Paul and I will be directing that the file be referred to Police.

M A Crosbie District Court Judge