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The Queen v Butler [2008] NZCA 287 (7 August 2008)

Last Updated: 19 August 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

v

Hearing: 29 July 2008

Court: Ellen France, Gendall and Miller JJ

Counsel: N J Sainsbury and L A Scott for the Appellant
S J Mount for Crown

Judgment: 7 August 2008 at 3 pm

An extension of time to bring the appeal is granted but the appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Miller J)

Introduction

[1] On 24 September 2005 a mobile car crushing unit owned by Otago Metal Industries Limited was sabotaged. Mr Butler, a director of a competing firm, was found guilty of intentional damage under s 269(2)(a) of the Crimes Act 1961. The trial was held before a Judge alone on 10 January 2007, and he was sentenced to two years imprisonment. He appeals against conviction only.
[2] An extension of time to bring the appeal is required because the appeal was not filed until 5 October. The explanation is that Mr Butler tried to raise funds to pay counsel, and then had to secure legal aid. The Crown does not oppose. In the circumstances, the extension of time is granted.

The District Court hearing

[3] Mr Butler and his partner, Tania Conner, were both charged, but at the beginning of the hearing her counsel made a s 347 application orally. It was granted without opposition.
[4] Mr Butler’s counsel, Mr Slater, then made an oral application for discharge. Judge Macdonald advised that he had read the depositions and inquired whether a Telecom witness who had made a deposition about telephone calls was to give evidence. That deposition established that a phone registered to a company of which Mr Butler is the director, had made two telephone calls to another cellphone (which the evidence established was Ms Conner’s) at 10.21 pm and 10.22 pm on the night of the incident. Having established that the witness was not to give evidence, the Judge then checked with counsel that his submission was that there was no evidence that Mr Butler was at the scene. Mr Slater confirmed that it was. The application was argued and dismissed, the Judge advising that he would not give reasons at that stage. He then established with counsel which witnesses were to be called and which were to have their depositions read.
[5] A reserved decision was delivered on 21 February 2007. The Judge found that sand had been placed in the machine’s bypass filter. The engine suffered severe damage when it was operated the following day, necessitating repairs costing approximately $73,000. The offender must have had some knowledge of such machines. The filter cap was replaced, suggesting the offender hoped the sabotage would not be detected until the damage had been done. Mr Butler had a motive to damage the machine. When he bought his own machine from Frost Steel Compactors there were only two machines operating in the South Island. One was owned by Frost, the other by Otago Metal Industries. They had a market sharing arrangement under which Otago Metal Industries covered the area south of Timaru. Mr Frost told Mr Butler that there might not be enough work, and he responded that he would run Otago Metal Industries off the road. The damage occurred in an industrial area at Kaikorai Valley in Dunedin. Mr Butler lives in Invercargill, but he was visiting Dunedin that weekend. A security guard saw his car parked at 9.56 pm only 800 metres or so from where the machine was situated. Ms Conner was sitting in the car, which was still there at 10.35 pm but had gone by just after 11. The guard did not see anyone else. It was admitted that at about 9 pm the appellant and Ms Conner had left her mother’s home in the car, returning about 11 pm, and that during that time the appellant phoned Ms Conner’s cellphone twice. She had left it at the house. No sand had been seen in the vicinity of the machine, suggesting it had been brought to the scene for the purpose.
[6] The Judge found that Ms Conner was sitting there, in an isolated industrial area, for at least 39 minutes, sufficient time for Mr Butler to get to and from the machine and sabotage it. There was no legitimate reason for Mr Butler’s car to be parked there at that time. He inferred that she was waiting for Mr Butler. The phone calls indicated that Mr Butler was away from the car and had seen the security guard; he was checking to see if the way was clear. The only reasonable and logical inference was that it was he who put sand in the machine.

The appeal

[7] The appeal is brought on the basis that the case against Mr Butler was circumstantial and the evidence does not exclude an innocent explanation. In particular, the Judge failed to consider the possibility that Mr Butler was not present at all. Rather, Ms Conner may have committed the offence. She was the only person seen in the car, and there was evidence that she was absent from it for up to 29 minutes, giving her time to get to the machine, damage it, and return. The fact that Mr Butler called her cellphone establishes that they were separated, but not that he was at the crusher unit while she was in the car. The evidence that Mr Butler intended to run his rival off the road establishes no more than an intention to compete vigorously.
[8] Mr Sainsbury speculates that the Judge may have overlooked Ms Conner as the offender because he had read the depositions before the hearing. They included a statement from Ms Conner, the gist of which was that Mr Butler had driven with her to the area and then gone off walking. She did not give evidence.
[9] Counsel accepted that there is no authority that a Judge sitting as the trier of fact should not read the depositions before the trial begins, but he suggested there is authority that a Judge should not preside over a summary trial if he has knowledge of the facts derived from an earlier involvement such as a status hearing, citing Pickering v Police (1999) 16 CRNZ 386 (HC).

Discussion

[10] Although he did not put it in quite this way, Mr Sainsbury’s submission was in essence that a Judge who has read the file before trial is unable to act as the trier of fact should a witness who has made a deposition the content of which proves to be material not be called. He suggested the Judge should read the file in advance only if invited by counsel to do so. We reject that submission. A Judge who has dealt with a proceeding at an earlier stage is not normally disqualified unless there is some real ground for doubting the Judge’s ability to bring an objective judgment to bear: Jessop v R [2007] NZSC 96 at [6]. That case dealt with reasonable apprehension of bias, but a similar principle applies in a case such as this. The Court does not presume that a properly directed jury is incapable of putting irrelevant or prejudicial material aside: R v Thompson [2006] 2 NZLR 577 (CA & SC). There is still less reason to suppose that a Judge, whose daily work routinely requires that evidence be segregated into that which is admissible and that which is not, is incapable of basing a decision on the admissible evidence alone. The only authority that counsel could identify, Pickering, does not establish Mr Sainsbury’s proposition. It dealt with a Judge-alone trial following a status hearing, at which guilty pleas and sentence indications may be canvassed.
[11] In this case there is no reason to doubt that the Judge could and did put the inadmissible evidence to one side. He took care to establish which of the depositions were being used and which witnesses were to be called. Nothing in his reasons suggests that he had regard to Ms Conner’s deposition. He did not refer to the possibility that she committed the offence, but Mr Sainsbury was unable to say that defence counsel advanced that possibility and it is most unlikely that the Judge would have failed to deal with it, had counsel done so.
[12] The question under s 385, in a Judge-alone case as in a jury case, is whether the decision is unreasonable or cannot be supported having regard to the evidence: R v Connell [1985] 2 NZLR 233 (CA). In support of his submission that Ms Conner could not be excluded, Mr Sainsbury emphasised that there was evidence from the security guard that the car was unoccupied for as long as 29 minutes, meaning that Ms Conner had got out of it. The Judge did not refer to that evidence.
[13] The evidence established that the guard first saw the car from a distance, at about 9.56 pm. It was moving, and when it reached a gate he noticed its indicators flash as if someone had locked its doors. He stopped by the car at about 10.05 pm, finding it empty. When he returned around 8 – 10 minutes later Ms Conner was sitting in it. He spoke to her for about five minutes before continuing on his rounds. He returned at about 10.35 pm to find her still sitting there. The car was gone when he next returned about 11 pm. In other words, she remained in that isolated place, late at night and although she knew the security guard was doing his rounds. Had she just finished sabotaging the machine herself, it is implausible that she would have remained longer than was necessary. There was nothing to suggest that Ms Conner might act independently. The inference that she was waiting for Mr Butler was open. Taken in combination with the other circumstantial evidence referred to by the Judge, we are satisfied that the decision was correct.

Decision

[14] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington