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DARYL PHILIP EVANS v THE QUEEN [1999] NZCA 124 (26 July 1999)

Introduction

[1] This is an appeal against conviction and sentence.The appellant was found guilty at trial before a jury in the District Court at Christchurch of five offences of theft by failure to account and acquitted in respect of two further offences of theft by failure to account and an offence of using a document.In respect of the offences of which he was found guilty he was sentenced by the trial Judge on 26 March 1999 to three months' periodic detention and reparation of $265.

Facts

[2] The appellant was a subcontractor of Baker Street Limited, a bakery.He was allotted a zone under certain conditions to sell, deliver and seek new business within it.The first seven counts in the indictment charged him with failing to pass on monies he had received from customers to Baker Street Limited, while the eighth count related to an alleged misuse of a company credit card after his dismissal.All of the offending was said to have occurred in and between the months of August to December 1997.The appellant was found not guilty in respect of the first two counts in the indictment relating to alleged offences in August and October 1997, and in respect of the alleged misuse of the credit card.He was found guilty in respect of five counts of failing to account for sums of money received by him in November and December 1997 from a coffee lounge, those sums totalling the $265 for which he was required to make reparation.The sums varied between $40 and $60.

[3] The principal of the bakery company gave evidence that the appellant took over his particular zone in February 1997.The appellant, like other subcontractors of the bakery, was obliged to account at the end of each day for monies received from customers.The principal of the bakery gave evidence that the returns from the appellant's zone began to drop off in July 1997 and, as a result, the bakery became concerned.The position became worse as the year proceeded, and the appellant's contract was terminated on 12 December 1997. Evidence was given of receipts from particular customers.

[4] In respect of the five counts on which the appellant was found guilty there was documentary evidence that he had received the sums in issue.He acknowledged that and acknowledged there was no record of the sums being paid by him to the bakery.His explanation for the failure to account was based on innocent error or confusion and mistake together with the knowledge, because of a guarantee in his distribution agreement, he would have to pay any amount ultimately owing by him.To find him guilty, the jury had to reject the appellant's evidence and explanations.

[5] Other factual matters pertaining both to the conviction and the sentence appeal are best discussed in the context of the various points of appeal.

Conviction Appeal

First Point of Appeal: The Trial Judge Erred in Answering a Question From the Jury

[6] This point on appeal is hardly worthy of discussion, as the jury acquitted the appellant on the count that its question referred to and clearly did not take it into account in respect of the other counts as the appellant was also acquitted in respect of two further unlinked counts.

[7] The question asked by the jury was: "Did Harry Simons in his evidence acknowledge receipt of the second payment of $12.65 from Darryl Evans?"To that question the Judge replied: "The answer is no, he was never asked that question."The complaint is that that answer is incorrect, in reliance upon questions and answers in the transcript of the evidence.However, those questions and answers do not refer to the sum of $12.65 but to other sums, and it is accepted there was never an unequivocal answer to a like question.

[8] In cross-examination the witness was asked whether he had received a plastic bank bag with $12.65 in it, to which he replied: "If I did it would be shown on the statements."In re-examination he said there was no record of any receipt of $12.65.

[9] While it may have been open to the trial Judge to have put before the jury all the evidence relating to the item of $12.65, the answer given by him to the specific question of the jury appears to be correct.It does not seem that counsel for the accused asked the trial Judge to expand upon the answer with reference to other sums which the witness acknowledged receiving.In any event, as already noted, the jury acquitted the appellant in respect of the particular count.We simply cannot accept the submission for the appellant that the jury was influenced by the answer to the question in respect of the appellant's general honesty and credibility, given both that finding and the acquittal of the appellant upon two other counts, particularly when his conviction on the other five counts was reliant upon entirely independent evidence.

Second and Third Points of Appeal: The Summing Up by the Trial Judge was One-sided and Misrepresented the Defence Case

[10] The appellant has run together two grounds of appeal relating to bias and misdirection on the part of the trial Judge.Once again the points have so little substance that they are hardly worthy of traversal.The Judge made very clear to the jury that they were the sole Judges of fact and that they could ignore anything he said about the facts if they disagreed with him.He summarised the defence case in this way:

The essence of the defence case is muddlement brought on by stress."Yes, I got the money.Yes, obviously I didn't pay it in and it was a terrible time for me and any failure to pay in I can't really say, but I was muddled, I didn't have a proper system" etc.That really is the defence case in a nutshell and these matters that have been put forward to you by the defence really arise to that - really are based upon that.Plus, as Mr O'Neill suggested to you that whilst the primary obligation was to pay it in on the day of receipt the accused was also aware that if there was any shortfall then he would guarantee to pay it in any event. [95-96]

[11] In respect of the five counts on which the accused was convicted, the trial Judge said this:

It would be permissible in the circumstances of the remaining counts involving the money to look at them together because you would be inconsistent if you came to different verdicts in regard to counts 3, 4, 5, 6 and 7, because they all relate to this little book, exhibit 10, signed by the accused of money received, comparing that with monies recorded as having been paid and of the nine lots of money received four got into Mr Simons' books and the other five didn't.Dishonesty again - have the Crown proved beyond reasonable doubt that the accused dishonestly failed to pay the money or, on the other hand, are you in reasonable doubt because of the accused's muddlement, as he puts forward. He is a curious man, he talks about muddlement in financial matters just as a by the way, then he talks about audit trails.What do you make of that? [98-99]

[12] It is the latter part of that statement, which is the Judge's only comment upon the accused or his case, which could be said to be detrimental to the accused.

[13] It is true, as is submitted for the appellant, that the accused never specifically used the word "muddlement" in his evidence, but on any reading of his evidence that word fairly and accurately summarises what the appellant was saying.He recognised the need for good records and the importance of an audit trail but acknowledged that he had no records, that he relied upon his customers, and that he had no system in respect of his transactions.

[14] Reading the 10 pages of the summing up as a whole, it is fairly balanced and a fair presentation of the case of the appellant, with but one short justified comment by the Judge in respect of that case.

[15] Under no circumstances could we read the summing up either as biased in terms of R v Fotu [1995] 3 NZLR 129 or as misrepresenting the appellant's case.

Fourth Point of Appeal: Excessive Judicial Intervention

[16] During the course of some 84 pages of evidence taken over two days the Judge intervened of his own volition on about 23 occasions.Only three of those interventions occurred during the appellant's own evidence.One was during evidence in chief, when the appellant spoke of guessing, and the Judge intervened to say the Court could not have the appellant's guesses.The other two were during re-examination, when on each occasion the intervention arose because of the particular form of the question by counsel for the appellant. Most of the other interventions occurred during the evidence of the principal for the bakery company, either to restrain the witness from giving irrelevant evidence or because of the inappropriate nature of counsel's questions. Although it is submitted for the appellant that at times the trial Judge adopted a semi-prosecutorial role, there is nothing whatever in his interventions which we can see that comes within that description.Quite the contrary.Having carefully perused each of his interventions, we are satisfied that the principal cause for them was the particular form of counsel's questions, with the intervention being an attempt to have counsel ask questions in an appropriate form, and for no other purpose.At no time did the trial Judge endeavour to prevent counsel for the appellant asking appropriate questions, and nor did he enter into the arena himself in any respect.His interventions were neither of the nature nor of the frequency which could possibly have affected the fairness of the trial.They were all reasonable interventions and could not possibly be said to infringe the rules established in cases such as Fotu.

Fifth Point of Appeal: Decision to Allow Amendment to Indictment

[17] This point of appeal was not pursued.

Sixth Point of Appeal: Verdict Unsupported by Weight of Evidence

[18] The only issue for the jury was whether the appellant was acting dishonestly when he failed to pass money on to the bakery company, in particular from one particular customer who had kept a cash payment book in respect of the payments for which it was alleged the appellant had failed to account.The jury had lengthy evidence from the appellant.They clearly rejected his explanation in respect of the cash payments which were established, notwithstanding that they gave him the benefit of the doubt in respect of the three counts where they found him not guilty.There was ample evidence available to the jury upon which they could reach the verdicts that they did.There is no possible basis for this Court to intervene.

Sentence Appeal

[19] The appellant was 36 years of age at the time of sentencing.The pre-sentence report recommended reparation to be paid in full and community service, noting that the appellant was a man with no previous convictions having lived a generally stable life with a good working background.

[20] At sentencing Crown counsel referred to an earlier discharge without conviction in respect of a charge of theft as a servant, the propriety of which is questioned: see Hepburn v Police [1972] NZLR 92 and Police v McCabe [1985] 1 NZLR 361.In respect of this the trial Judge said:

The real fact of the matter is that you cannot entirely be dealt with as a first offender but generally I intend to deal with you in that way. [107]

[21] The trial Judge then went on to consider the offending and noted that if the particular customer who had kept the cash record book and had the appellant sign for it had not done so no-one really would have known what the appellant had done.He noted that when she ultimately sought an account from the appellant he wanted to take the book away to check it with his accounts but that she sensibly retained it.He went on to consider the appropriate sentence.The pre-sentence report had said a fine would not be appropriate because there was no proof of ability to pay a fine and, as already noted, recommended a sentence of community service.The Judge had no information as to whether or not such service was available, but in any event the submissions for the appellant were directed towards a fine upon the basis that community service would impose difficulties upon the appellant's burgeoning business. Funds were available for reparation so there was no problem for the trial Judge in respect of that aspect of the sentenceHe came to the conclusion that a fine was inappropriate, having regard to the appellant's financial circumstances, as it would be a penalty imposed upon the three young children of the appellant in his custody.He accepted community service was inappropriate in the circumstances put to him and, as a result, regarded periodic detention as the only appropriate sentence available to him.

[22] The submissions for the appellant are upon the basis that a fine was the appropriate sentence.Given the deliberate course of dishonesty found by the jury and the circumstances before the trial Judge the only possible sentence was either a fine or periodic detention.The Judge was fully entitled, on the information before him, to take the view that a fine was inappropriate and that periodic detention was an appropriate outcome.It cannot be suggested that the period of periodic detention imposed was manifestly excessive in respect of the deliberate course of offending adopted by the appellant.

Result

[23] The appeals against conviction and sentence are dismissed.In respect of the sentence of periodic detention the first reporting time for the appellant at the Christchurch East Periodic Detention Centre at 603 Pages Road, Christchurch, shall be on Friday, 6 August 1999, between the hours of 4.00 p.m. and 6.00 p.m.