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P v Police HC Auckland CRI 2005-404-95 [2006] NZHC 1069 (24 April 2006)

Last Updated: 18 June 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2005-404-095}

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 24 April 2006

Appearances: Mr Heaslip for appellant

Mr McClintock for respondent

Judgment: 19 September 2006 at 9.30 am

_{JUDGMENT OF WINKELMANN J}

This judgment was delivered by me on 19 September 2006 at 9.30 am pursuant to

Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Meredith Connell, Auckland

_{Paul Heaslip, Auckland}

P V POLICE HC AK CRI 2005-404-095 19 September 2006

[1] On 14 March 2005 Mr P was convicted on the following counts:

(a) That with intent to obtain a service dishonestly and without claim of right, he used a document, namely a joint application and affidavit for order dissolving a marriage capable of being used to obtain any service: s 228 Crimes Act 1961 (count 1); and

(b) Using a writing, namely a New Zealand marriage certificate that he knew was not sworn by the deponent or before a person authorised to administer that oath: s 114 Crimes Act 1961 (count 2).

[2] In relation to count 1, the basis of the conviction was that in December 2003

Mr P completed his then wife’s signature on a joint application and affidavit for order dissolving a marriage and that he also completed the signature of the witness recorded there, J P Larcomb, Justice of the Peace. The joint application and affidavit was capable of being used to obtain a service, namely a dissolution of marriage.

[3] The second count relates to an exhibit annexed to the joint application and affidavit. That document is a copy of the New Zealand marriage certificate for the marriage of Mr and Mrs P . The exhibit note had been completed with the signature of J P Larcomb. The basis of the conviction was that that signature was not the signature of Mr Larcomb.

[4] Judge Bouchier heard evidence as follows. The Police called the ex-wife of Mr P , Mrs Shona P . Her evidence was that she and Mr P were married in April 1999, but were separated in October 2001 and had had no contact since 8 July 2003. She became aware in late 2003 that Mr P was trying to contact her. She did not wish contact with him, so did not respond. On Saturday 17

January 2004 she received a letter from the Henderson District Court saying that her marriage was going to be finally dissolved at the end of January 2004. The letter advised her that the Registrar had made an order dissolving her marriage in the Court on 23 December 2003, but that order would not come into effect until one month from the date it was made. The letter advised her that if no request for a hearing had

been made by her or the other party during that period a copy of the order would be forwarded to her when the month had expired. She contacted the court and requested a copy of the application. She was sent the copy and her evidence was that the signature on the application, purportedly hers, was not hers. She made a complaint to the Kerikeri Police. Her evidence was that she was on rural delivery and out of Kerikeri so that mail would take 2-3 days for her to receive it.

[5] She subsequently attended court for a dissolution hearing on 28 January 2005 and filled out the necessary forms. She consented to the dissolution and the marriage was dissolved.

[6] The evidence of the Justice of the Peace, Mr Larcomb, was admitted by consent in the hearing before Judge Bouchier. His evidence was that he had officiated as celebrant for the marriage of Mr P and Mrs P and that Mr P was his stepson. He confirmed that the handwriting and signatures which purported to be written on the application and marriage certificates by him were not his and that he had never seen them until the police showed him the documents. He said that he was out of New Zealand at the time (between 20 and 25 December 2003) and therefore could not have witnessed the documents.

[7] Also produced into evidence was a Customs certificate which corroborated

Mr Larcomb’s account of his movements.

[8] Sergeant Masters from the Kerikeri Police gave evidence that he took a complaint from Mrs P , obtained a statement and obtained some handwriting samples from her. These samples were produced into evidence.

[9] The Judge also heard evidence from Mr David Boot, a senior document examiner with the New Zealand Police. He said that he had considered the joint application and affidavit for marriage dissolution and the marriage certificate. He had compared them to handwriting samples of Mrs P , and to a hand-written affidavit that had been completed by Mr P .

[10] Mr Boot said that he found no evidence that Mrs P completed the signature on the affidavit. In relation to the Larcomb signatures, he received no specimen signature so could give no opinion on those. However, he concluded that the handwriting on both the joint application and affidavit and on the exhibit note on the back of the marriage certificate next to the signatures of Mrs P and Mr Larcomb was that of Mr P .

[11] Finally the Judge heard the evidence of Detective Constable Pearson who produced into evidence a videotape of an interview by him of Mr P . During that interview Mr P was told that he was not under arrest. He was advised of his rights. He agreed that he had consented to giving a videotape interview. He said he had been planning to marry again in late January 2004. He obtained the joint application and affidavit for dissolution from the Family Court, and swore the affidavit before a female staff member there. She told him that if he wanted his marriage to Mrs P dissolved by late January 2004 he would need to file the joint application and affidavit in December. He said that he completed the handwriting on the joint application, except that portion which is in the clause set aside for the signature of the deponent and the witnessing of the deponent’s signature. He then went to the Post Office the morning of the same day and mailed by Fastpost or couriered the joint application and affidavit to his wife in Kerikeri. His account is that he received the document back in his mailbox on the afternoon of the next day. He said that he did not know who had completed the signature of his wife, but said that he now saw that the signature purporting to be that of Mr Larcomb was not in fact Mr Larcomb’s signature. He denied that he had completed the signatures of Mrs P and Mr Larcomb. After further questioning, Mr P admitted that he had completed Mrs P ’s signature, that the handwriting was his and he accepted a proposition put to him that he had done this to speed the dissolution of marriage up.

[12] On the basis of the evidence before her Judge Bouchier accepted that the charges were proved beyond reasonable doubt. She convicted Mr P on each charge, and fined him the sum of $1,000 on each charge, court costs of $30.00, expert witness fee of $675.00 and witness costs of $25.00.

Grounds of appeal

[13] Many grounds of appeal were advanced by counsel for Mr P . In relation to the first count, the principal ground of appeal was that there was insufficient evidence to prove the charge beyond reasonable doubt. In particular, it was argued:

(a) That the expert did not give evidence that the signatures were those of

Mr P .

(b) The Customs declaration as to Mr Larcomb’s absence from New Zealand was improperly admitted in the face of objection to its admissibility.

(c) Mr Larcomb’s evidence was improperly admitted. However this ground of appeal was withdrawn after hearing. Counsel for the appellant’s inquiries confirmed that counsel who represented Mr P at the District Court hearing had consented to Mr Larcomb’s statement being admitted into evidence.

(d) The Judge placed significant weight on the video interview, but the video interview should have been ruled inadmissible, because of serious breaches of the Judges’ Rules.

[14] An additional ground of appeal advanced was that in terms of s 16 of the Summary Proceedings Act two counts should have been laid in respect of the alleged conduct, one in respect of the application and one in respect of the affidavit.

[15] Finally, it was argued that a dissolution of marriage is not a service within the meaning of s 228 of the Crimes Act 1961 and even if the dissolution of marriage is a service, the documents were not themselves capable of being used in fact to obtain such a service.

[16] In relation to count 2, the ground of appeal is that the count was improperly framed. As framed, the information was that Mr P “used a writing namely a New Zealand marriage certificate that he knows was not sworn by the deponent or before a person authorised to administer that oath” and related to s 114(b) of the Crimes Act 1961.

[17] The relevant portion of s 114 reads:

Every one is liable to imprisonment for a term not exceeding 3 years who -

...

(b) Uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows was not sworn or made, as the case may be, by the deponent or before a person authorised to administer that oath or take that declaration.

[18] The point taken is that a New Zealand marriage certificate is not an affidavit or a statutory declaration.

[19] It is also a ground of appeal that there was insufficient evidence on which the

Judge could have concluded guilt beyond reasonable doubt.

[20] I propose to address the issues raised by the appellant in the following order.

1. Should the videotape interview be ruled inadmissible as being obtained in breach of the Judges’ Rules or otherwise improperly?

2. Was there sufficient evidence for the Judge to be satisfied beyond reasonable doubt of Mr P ’s guilt in respect of count one?

3. Was the dissolution of marriage a service, and if so were the documents themselves capable of being used to obtain a service and used to obtain that service?

4. In relation to count two, is the charge defectively drawn so as to be void, and if so should leave be granted to amend it?

6. Was there sufficient evidence to satisfy the Judge beyond reasonable doubt of Mr P ’s guilt?

Admissibility of videotape interview

[21] No objection to the admissibility of the videotape interview was taken in the District Court. This issue was raised on appeal for the first time. I was not able to view the videotape during the hearing of this appeal as defence counsel had not requested that the videotape be made available. I did at least have the transcript of the interview and counsel was able to take me to portions of that transcript in support of his argument. I have now obtained and viewed the videotape since hearing.

[22] The argument advanced before me was that the manner in which the interview was conducted was a breach of Rule 7 of the Judges’ Rules because the statement was a voluntary statement yet there was extensive cross-examination of Mr P .

[23] To some extent the Judges’ Rules have been “overtaken and rendered obsolescent by the New Zealand Bill of Rights Act” (R v Ritchie (2004) 21 CRNZ

591 (CA)). However, s 23 of the New Zealand Bill of Rights Act 1990 does not deal with the specifics of how interviews should be conducted, and in particular the manner of questioning that is permissible. Compliance with the Judges’ Rules ensures that the interview is conducted in a fair manner and in a way that is not unduly oppressive.

[24] As was said by the Court of Appeal in R v R (2003) 20 CRNZ 327 (CA):

The rules, or their spirit, may however continue to inform in a broad way the exercise of the fairness jurisdiction in areas where the Bill of Rights does not apply ...

[25] I consider that the issue of compliance with the Judges’ Rules is relevant to the exercise of the Court’s jurisdiction to exclude evidence unfairly obtained.

[26] Rule 7 of the Judges’ Rules provides:

A person making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing an ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.

[27] In this case I am satisfied that the interview commenced in a proper fashion. Mr P was asked to give his explanation of events. He described obtaining the joint application and affidavit form, completing it, sending it to his wife. He was asked in relation to the signature of his wife and of Mr Larcomb on that document. Having obtained that explanation by page 25 of the transcript of the interview, the Detective Constable began putting to Mr P “concerns” he had regarding Mr P ’s explanation. He commenced by pointing out the similarities between Mr P ’s handwriting in the hand-written affidavit (the affidavit used by Mr Boot as a handwriting sample), and the handwriting of the word “Kerikeri” immediately next to Mrs P ’s signature on the joint application and affidavit. He put to him that it was unlikely that anyone other than Mr P would be motivated to complete Mrs P ’s signature on the joint application and affidavit. In contrast, Mr P could well have been motivated by his impending marriage to another party to “speed things up” by completing the document.

[28] Although up until page 30 there is some cross-examination of Mr P , I am satisfied that that was not unduly oppressive and that it did at least provide Mr P with an opportunity to provide an explanation for obvious issues raised by his own explanation. However, from page 31 of the transcript, the interview becomes repetitive, and I am satisfied, oppressive in tone. The same propositions are put to Mr P time and time again. These propositions are almost all to the effect that Mr P ’s explanation is unlikely. The Detective Constable also puts to Mr P a number of times that the police are going to be able to gather more evidence against him, and that the best thing for him to do is to admit to what he has done. This theme is developed and strengthened as the interview moves on.

[29] Examples of statements made by the Detective Constable are as follows:

Yep so I mean to be honest with you the best and the easiest way to resolve this is in, and I firmly believe that you had just wanted to get it sorted out so

that your marriage can go ahead, the easiest way to resolve this and the, and your only going to get, um it can only be worst for you if we find more and more evidence which is going to point it to you and as I said there’s going to be easy ways to find evidence. That can be done through the post, because we show that there’s no possible way it could have arrived to Shona, and she obviously never knew anything about it. [Page 33].

But you see its not the biggest thing that’s ever going to occur, um but there, there, its also a bit about being honest as well. I mean like I said I mean we’re talking about using a document, um your employers never going to find out about it, its not going to affect your marriage or anything but its also about being honest as well, um and all all I’m saying to you is that I can show you all this evidence to show that the only person who done this or motivates to do this is you. Not anyone else and you can bring me all these other different names of all these other different people but by admitting yes I did it because I had to speed the bloody process up, I had to get married in a weeks time. Because the only person that’s got motivation to do this is you Roger. Now you’re ex wife doesn’t have to find out about this, sorry your new wife doesn’t have to find out about this either. All I’m saying ... [Page 35]

Then, well its going to look worse for ya. All I’m saying to you is that you’ve got the opportunity to admit to is um the only people, its, its between you and I ok, um it doesnt, your ex, you’re your new wife doesn’t have to know, but from a man whose employed, whose educated um you your saying things that that are sounding a bit, a bit silly and the reason why I say that is I’ve already explained to you that your handwriting on here is identical to the hand writing on there, the last thing I wanna do is have to call up the father in law who’s a JP and get a statement taken from him and get hand writing samples of him, um because he’s not going to feel very good either when he, if he finds out later on that you’ve been lying to him as well. Do you understand what I mean, um because when we prove, and we will, that that is your handwriting that you’ve, you’ve done this your father in laws not going to be very happy is he because he’s a JP and you’ve sort of falsified his signature as well. Again its not crime of the century ok, but you just wanted to speed up your marriage, sorry you just wanted to speed it up so that you could get married. [Pages 36-37].

[30] The interview proceeds in a similar vein. The above are representative samples only. It culminates at page [40] following a lengthy statement by the Detective Constable of the difficulties with Mr P ’s explanation. At the end of that Mr P responds:

S Ok I’ll admit, I’ll admit to it, I just had enough. I Or you’ll admit yes I did do it.

S Ok, I’ll do it.

I And why did you do it? S I don’t know, no idea.

I No because you wanted to speed up the ...

S Well obviously that’s the way its looking so I’ll have to go with that

I But I’ll prefer you to tell me in your own, in your own way. S Ok I did it to speed it up, yep there you go.

[31] The badgering style of the interview which involved cross-examination of the witness and extensive repetition was plainly intended to browbeat Mr P into making an admission. I am satisfied that from page 31 of the interview (in terms of the transcript) the interview was unfairly conducted in that it was oppressive. This portion of the interview includes Mr P ’s admissions.

[32] Having concluded that, I turn to consider the balancing exercise described in R v Shaheed [2002] 2 NZLR 377, in relation to the issue of admissibility. I exercise my discretion to rule that the portion of the evidence recorded from page 31 of the transcript and following is inadmissible. This is because the style of questioning was likely to produce an untrue or unreliable admission so that the evidence has little probative value.

[33] I note that there can be no criticism of the District Court Judge in relation to the admission of this evidence. There was no objection taken to the admissibility of the videotape before her.

[34] The appellant’s success on this point does not avail him. I am satisfied that even if that portion of the interview is excluded from consideration, there was still ample evidence before the District Court Judge on which she could be satisfied beyond reasonable doubt of Mr P ’s guilt in respect of count one. This evidence can be shortly listed as follows:

(a) Mr P ’s admission in the early portion of the interview that he obtained the joint application and affidavit and filled in all of it with the exclusion of the attestation clause for the deponent Mrs P .

(b) Mr P ’s account of how he mailed or couriered the application to

Shona P in Kerikeri, and received it back the next afternoon, a

very unlikely account of events, given the distance Mrs P lived from Auckland.

(c) The evidence of Mr Boot, the document examiner, that the handwriting on the document is all that of Mr P . This contrasts with Mr P ’s denial that the handwriting in the attestation clause is his. The handwriting that is Mr P ’s would include the writing of the words Kerikeri and the date, and the writing of the name “Larcomb”. It is highly probable that the person who filled in the attestation clause also signed Mrs P ’s and Mr Larcomb’s names.

(d) Mr P ’s statement that he was to be married in late January 2004 and that if the dissolution was to be processed in time for his marriage, the joint application and affidavit had to be filed in December 2004.

(e) The evidence of Mr Larcomb that he was out of the country on 23

December 2003.

(f) The fact that Mr Larcomb is the stepfather of Mr P .

[35] It was not necessary for the Police case that the expert express an opinion that the two signatures in question had been completed by Mr P . That was an inference open to the Judge on the basis of the evidence referred to above.

[36] Finally, the appellant also took issue with the admission into evidence of the Customs documentation proving Mr Larcomb’s absence from New Zealand. I do not propose to consider this argument as it does not assist the appellant. That evidence was unnecessary, as the Court had the evidence of Mr Larcomb, admitted by consent, that he was out of New Zealand at the relevant time.

Count improperly framed

[37] The appellant’s argument is that count 1 was improperly framed because its subject matter was a joint application and affidavit. As such it should have been split into two counts, one for the affidavit and one for the application. That argument has no merit whatsoever. The application and affidavit were in one document. In such circumstances, the charge was properly framed.

Was the document used with intent to obtain a service?

[38] The appellant submits that the obtaining of a Family Court order dissolving the appellant’s marriage cannot be a service. This is because Mr P obtained no economic benefit from the filing of the joint affidavit and application. Counsel for Mr P refers to the decision in R v Cara (2004) 21 CRNZ 283 as authority for the proposition.

[39] Further, the appellant argues that even if the dissolution does amount to a service, the document (joint application and affidavit) must be able to itself obtain that service. It is said that such is not the case here as the Court has a process whereby it needs to ensure that the parties actually want the dissolution. That is carried out in a short five minute hearing. All that the application and affidavit can ever obtain is a Court date, not the dissolution.

[40] In R v Cara Potter J held that a service for the purposes of s 228 of the Crimes Act was an activity having an element of financial or economic value, and did not include an activity having no such value.

[41] In this case the joint application and affidavit were filed to achieve a desired outcome; the making of an order dissolving Mr and Mrs P ’s marriage. For that order to be made a number of administrative steps had to be taken. A value is ascribed to the taking of those steps, and the expenditure of court resources on the making of the order. That is why the applicants must pay a fee when filing the

application for dissolution. In such circumstances the processing of the joint application and affidavit and the making of the order are clearly the provision of a service having economic or financial value.

[42] It is not an element of the offence that the offender must dishonestly attempt to avoid payment of full value for the service. The dishonesty may consist of something else, such as here, obtaining through the filing of a falsified document, a service to which the appellant was not otherwise entitled, namely a dissolution of marriage made on the basis of a “joint application”.

[43] I am also satisfied on the evidence presented to the Court that the document was capable of obtaining a service. The letter dated 15 January 2004 from the Department of Courts advises Mrs P that the order dissolving the marriage had been made on 23 December 2003 but would not come into force until one month from the date to enable the parties to request a hearing before that date. Therefore, in the absence of a protest from Mrs P , the order would have become final.

Count two

[44] As framed, the count relates to the marriage certificate which was annexed to the joint application and affidavit for dissolution. The appellant argues that a New Zealand marriage certificate is not an “affidavit” or a “statutory declaration”, it is a certificate prepared by the Department of Births, Deaths and Marriages setting out the particulars of a marriage. It is not sworn or declared and as such the offence as stated is a nullity.

[45] The respondent submits that the issue raised by the wording of count 2 is an issue that relates to the particulars of the charge and not to the elements of the charge itself. The charge describes the writing as the marriage certificate itself, when it is accepted it should describe the writing as the sworn declaration contained on that Marriage Certificate. It is further submitted by the respondent that it is clear from the notes of evidence from the defended hearing that neither the prosecution nor the defence were under any misapprehension as to the fact that it was indeed the sworn

declaration contained on the marriage certificate that was the subject of that particular charge.

[46] In any event, the respondent invites me to amend the charge to refer to the declaration on the marriage certificate rather than the marriage certificate itself and submits that no prejudice to Mr P will occur by virtue of such amendment.

[47] I am not satisfied that this is a case where an amendment as invited by the respondent will cure the defect. The difficulty for the respondent is that the handwriting on the certificate is not a sworn declaration. There is no sworn declaration on that document. The declaration that is referred to on the exhibit note is simply that which is recorded on the joint application and affidavit. Were the count to be amended to solve the respondent’s difficulty, it would therefore have to be amended to refer to the statutory declaration contained on the joint application and affidavit. I am not prepared to make such an amendment on appeal when the entire focus of the hearing in the District Court was upon the writing on the marriage certificate.

[48] I again note that this point was not raised before the District Court Judge by counsel representing Mr P at the time.

[49] In the circumstances, the appeal in respect of count two, namely that the appellant “used a writing namely a New Zealand marriage certificate that he knows was not sworn by the deponent or before a person authorised to administer that oath” is allowed. The appeal in respect of count 1 is dismissed. The penalty imposed in respect of count 2 of a $1,000 fine is therefore quashed. All other penalties and costs

_{ordered remain in full force and effect.}

H D Winkelmann J