CARTER v R [2016] NZCA 629

CARTER v R [2016] NZCA 629 [21 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA327/2014[2016] NZCA 629BETWEEN JOHN ANDREW CARTERAppellantAND THE QUEENRespondentHearing: 8 November 2016Court: Asher, Woodhouse and Ellis JJCounsel: M R Bott for AppellantH W Ebersohn for RespondentJudgment: 9 November 2016 at 11.45 amReasons: 21 December 2016JUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The application for leave to adduce further evidence is granted.C The appeal against conviction is dismissed.D The appeal against sentence is allowed.E The concurrent sentences of three years and three months' imprisonment are quashed and substituted with concurrent sentences of three years'imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] The appellant, John Carter, challenges his conviction and sentence on two counts of theft, having been convicted on 19 July 2013 after a jury trial before JudgeWade in the Dunedin District Court and sentenced to three years and three months'imprisonment.1 During the trial Mr Carter acted for himself and gave evidence. On appeal he was represented by Mr Bott.[2] At the trial the Crown had presented evidence showing that on two occasions Mr Carter had, using a hire truck, stolen metal from the premises of the Roxdale Foods factory. It was a strong Crown case involving, as we will set out, a significant body of evidence showing that Mr Carter was the thief. He appeals his convictions, raising seven points. The most significant is that his cognitive impairment meant he was unable to act on his own behalf and the trial was unfair. He also appeals his sentence on the grounds it was manifestly excessive and did not account for his health difficulties. We will deal with the points in order after summarising the background as set out in the Crown evidence.[3] Mr Carter's notice of appeal was filed out of time. The Crown did not opposean extension and we have granted an extension of time to appeal accordingly.[4] In a results decision issued on 9 November 2016 we dismissed the appeal against conviction and allowed the appeal against sentence.2 Our reasons now follow.Background[5] In relation to the first alleged theft of the metal, the Crown case was that a person giving the name of John Carter leased a truck with a crane shortly before the theft. A document examiner compared the handwriting on the truck hire forms to handwriting specimens of Mr Carter and concluded there were similarities and indications that the author was the same. The stolen metal was held at the factory of1 R v Carter DC Auckland CRI-2011-076-255, 12 September 2013.2 Carter v R [2016] NZCA 535.Roxdale Foods in a semi-rural setting. The size and weight of the metal required a truck and crane to move it easily.[6] A cashier weighbridge operator at a scrap metal dealer who knew Mr Carter identified him as the person who at around the time of the theft arrived in a truck with a load of scrap metal. The metal was sold to the scrap metal dealer for $3,160.10. Later the manager of Roxdale Foods identified the metal as having come from the yard at the factory.[7] In relation to the second theft, a farmer with paddocks adjacent to Roxdale Foods was at home with his wife when a person identified as Mr Carter came to their property seeking help. A truck with a load of metal on it was stuck in the paddock by the area where the metal was kept at Roxdale Foods. The farmer and his wife became suspicious and contacted the Roxdale Foods manager. Mr Carter explained his presence in the paddock by saying he thought he had been "put wrong"by a real estate agent, a Ms Gloag, who was selling land adjacent to the property.[8] In his evidence Mr Carter acknowledged that he was the person who had approached the farmer and his wife in relation to the truck stuck in the paddock with the metal on the back. It was discovered later that the fences had been cut to give the truck access into the paddock and the Roxdale Foods premises.[9] After receiving the call from the farmer the manager of Roxdale Foods went to the farm immediately. He arrived before Mr Carter had left. He identified the metal on the truck as belonging to Roxdale Foods. He accused Mr Carter of stealing it. He threatened to call the police. Mr Carter in response promised to return the metal to Roxdale Foods in the morning. He asked for assistance to be towed out. He persuaded the manager not to call the police by saying that he would stay with a former police officer, a Mr Knight, overnight. He said he would bring the metal back to Roxdale Foods in the morning. He was then towed out.[10] Mr Carter did not return the metal the next morning. In a brief of evidence that was read by consent Mr Knight said that he had never heard of Mr Carter.[11] The manager called the local scrap metal dealers about the theft after Mr Carter failed to return. A truck arrived at the same scrap metal dealer to deliver a second load of metal that appeared to the cashier weighbridge operator to match themanager's description of the stolen metal. Mr Carter was driving this truck. The operator asked him to wait while he spoke to his manager. When he returned Mr Carter had gone. Mr Carter was subsequently arrested. At that point he was still in control of the hire truck.[12] The manager estimated the replacement value of the stolen metal as between $50,000 and $70,000.[13] Mr Carter, when he gave evidence, asserted that the truck was not used by him to steal metal from Roxdale Foods. He claimed that the truck was hired by an associate of his, a Mr Billy Hopwood. Mr Carter said in his evidence that he got a call one night from Mr Hopwood saying his truck was stuck in a paddock. Mr Hopwood asked him for help. He went to the paddock with his brother. This was his explanation for his encounter with the farmer and his wife.[14] However, Mr Carter never called Mr Hopwood as a witness, or provided any evidence as to his existence. Indeed, he claimed in his evidence that Mr Hopwood had been killed by Mr Hopwood's girlfriend, who had deliberately caused a caraccident. Mr Carter did not call his brother as a witness.[15] In his evidence Mr Carter did not explain why the farmer or his wife did not see either Mr Hopwood or the brother, or why Mr Carter never mentioned those persons to the farmer or his wife. In his evidence he did not point to any discussion with Ms Gloag as a reason for his presence at the Roxdale Foods factory.[16] As we will set out, in our assessment, Mr Carter was caught in the paddock red-handed in the act of stealing the metal. The Crown case was overwhelming. There was ample corroborative evidence of the theft, and nothing to indicate that a Mr Hopwood actually existed.Cognitive impairment — an unfair trial?[17] Mr Bott presented his submission on the issue of Mr Carter's representation under the heading "Difficulties of cognitive impairment". As Mr Bott developed his submissions, two threads emerged: first, Mr Carter's cognitive impairment was suchthat he was not fit to represent himself and therefore there was a miscarriage of justice; and, second, that an examination of what happened at trial showed that because of his impairment and his actions in Court the trial was unfair.The statutory framework[18] Section 25 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) guarantees as a minimum standard of criminal procedure a right to a fair and public hearing3 and the right to be present at the trial and to present a defence.4 Everyone who is charged with an offence has the right to consult and instruct a lawyer5 and everyone has the right to the observance of the principles of natural justice.6However, s 24(c) does not guarantee or require a lawyer in a criminal trial. Indeed, a defendant has the right to conduct the proceedings personally rather than instruct a lawyer. Section 354 of the Crimes Act 1961 provided:7354 Right to be defendedEvery person accused of any crime may make his full defence thereto by himself or by counsel.[19] These provisions were scrutinised by the Supreme Court in R v Condon in relation to a self-represented litigant. The Court held:8Section 24 does not guarantee the provision of a lawyer for the defence in all cases, even when the charge being faced by the accused is of a serious crime. An accused has the right to employ a lawyer, but the state does not guarantee to provide the lawyer's services — in this respect its role is passive, in the sense that it must not impede the exercise of the right by the accused. The exception is under s 24(f), when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the3 New Zealand Bill of Rights Act 1990, s 25(a).4 Section 25(e).5 Section 24(c).6 Section 27(1).7 The proceedings against Mr Carter commenced before the commencement of the second stage of the Criminal Procedure Act 2011 on 1 July 2013.8 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [76] (footnotes omitted).accused who must take the necessary steps to obtain assistance under the Legal Services Act.[20] There is no absolute right to legal representation, but the right to a fair trial (affirmed by s 25(a)) is an absolute right.9 Section 24 does not guarantee the provision of a lawyer for the defence in all cases, even when the crime alleged is serious. However, there will be some serious charges, such as murder, and some complex types of trial where it will be very difficult to avoid an unfair trial if the litigant is not represented. On such occasions a court may resort to the appointment of an amicus curiae to ensure a fair trial.[21] Where a defendant wished to be represented in defending a serious charge but was not, the starting expectation will be that the trial was unfair.10 Where, however, the defendant has made an informed choice to not be represented, the starting point is different. The trial is not presumed to be unfair. But an appellate court is still obliged to examine the overall fairness of the trial. If the trial was unfair the conviction will be quashed.11[22] The right of defendants to conduct their own defence is not premised on the basis that defendants will do so in a skilful or effective manner.12 A self-represented lay defendant will lack the knowledge of the rules of procedure and evidence and the"experience and skill in their application in the trial context".13 Such lay litigants will lack the detachment of counsel and will more often than not show skills far short of those of a lawyer in organising evidence and conducting cross-examination. Thereal question is whether the defendant has the capacity "albeit at a basic level, toparticipate directly in the trial through questioning witnesses and communicating thedefence to the Court".14[23] An appellate court in embarking on a review of the fairness of a trial where the defendant was not represented must examine the circumstances in which the defendant came to be tried without a lawyer. As part of that inquiry we will consider9 R v Condon, above n 8, at [76].10 At [79].11 At [80].12 R v Cumming [2006] 2 NZLR 597 (CA) at [43].13 At [44].14 At [50].Mr Carter's cognitive impairment, which is relevant to both his decision to beself-represented and the fairness of the trial. We will then consider more generally how Mr Carter came to be self-represented, what happened at the trial, and whether it was unfair. So we start with Mr Carter's cognitive impairment.Mr Carter's cognitive impairment[24] Mr Carter has over 50 previous convictions. He has been sentenced to imprisonment on a number of occasions. He was, at the time of the trial, 48 years old. His previous convictions include obtaining by fraud, theft and multiple receiving charges. They indicate that Mr Carter was operating, albeit fraudulently, in the community. It is not the sort of record that might normally be associated with a cognitive impairment.[25] The pre-sentence report, while referring to his cognitive needs stemming from a childhood head injury, noted that he would not meet the criteria to receive psychological treatment and indicated he was suitable for and able to comply with a sentence of community work. The key feature emphasised in that report was his refusal to acknowledge or take responsibility for his offending. He had been polite and thoughtful throughout the interview.[26] Mr Bott relied on a report prepared after the trial and for this appeal by a consultant forensic psychiatrist, Dr Barry-Walsh. Without opposition we give leave for this new evidence to be adduced. Dr Barry-Walsh was of the opinion that Mr Carter had a significant cognitive impairment as a result of a head injury he suffered at the age of about four. He thought he would be fit to stand trial if he had legal representation. But he did not think Mr Carter would be able to effectively act for himself. He had interviewed Mr Carter, and examined the transcript of parts of the trial.[27] Dr Barry-Walsh had interviewed Mr Carter's case manager in the unit inwhich he was held after trial. The case manager observed that Mr Carter "over thinks" things but did not appear to have memory issues. He is quick to think the world is against him.[28] We will refer to Mr Carter's actual conduct during the trial later. Thetranscript shows Mr Carter was quick to challenge witnesses in cross-examination whenever they departed from their statements, or where the witnesses' evidence wasinconsistent with those statements. As we have noted, on one occasion when he was found in the truck with the stolen metal on the back, he was able to persuade the farmer and the manager of Roxdale Foods to allow the truck to be pulled out of the mud with the stolen metal on the back. He told an apparently believable story of coming back the next morning. The farmer was persuaded to use his tractor to pull the truck out of the mud and described Mr Carter as having "the gift of the gab". Thus, while we accept that Mr Carter has a cognitive impairment and a well-developed sense that people are out to get him, we are not persuaded that the background evidence shows him to be so inhibited in his thinking and decision-making that for that reason alone he could not put forward a defence of honest conduct on his part.Was Mr Carter unwillingly self-represented?[29] Under s 385(1)(c) of the Crimes Act the Court may allow an appeal if it is of the opinion that on any ground there has been a miscarriage of justice. Mr Bott relied on the history of the lead-up to the trial, the trial itself, and various events that he submitted indicated Mr Carter's lack of understanding of how to present a defence orchallenge the prosecution case.[30] The Supreme Court noted in R v Condon that the accused should take the necessary steps to obtain the services of a lawyer by obtaining legal aid, rather than sitting back.15 This Court stated in R v Whitelaw:16[23] Common sense and authority suggest that the entitlement under s 24(f) is subject to the defendant taking the necessary steps to obtain legal assistance under the Legal Services Act, see R v Condon at [76] . The appellant is not a stranger to the courts and it is clear that he had a general understanding of the existence of the legal aid scheme.[31] In the lead-up to the trial Mr Carter was represented and then not represented at various stages. Nearly a year prior to the trial Judge O'Driscoll noted in a minute15 R v Condon, above n 8, at [76].16 R v Whitelaw [2008] NZCA 307.of 13 September 2012 that Mr Carter was "again urged" to obtain legal advice.17 At that point he was acting for himself. The Judge recorded that he had previously indicated to Mr Carter that if he could not afford a lawyer he could apply for legal aid. The Judge then noted:18Mr Carter is nodding and is aware of that advice that I have given him, but it is clearly his decision as to what he does in terms of obtaining legal advice and legal representation.[32] After that Mr Carter obtained the assistance of a barrister, Mr Maze, who acted for him until 6 March 2013. At that point Mr Carter withdrew his instructions and after that he remained unrepresented. Mr Carter has not filed an affidavit in these proceedings setting out why he remained unrepresented. He had from 6 March 2013 to 15 July 2013 (when the hearing commenced) to obtain a lawyer. There is no suggestion that he sought and was denied legal aid.[33] We can only interpret the sequence of events as indicating that he made a decision that he did not want representation. We do not see him as an unwillingly self-represented litigant. He chose to represent himself.Was the trial unfair?[34] It was stated in R v Cumming:19The requirement that the accused is rationally able to understand the proceeding and functionally able to defend it during the trial process must beaddressed on the basis of the accused's capacity to do that adequately inperson, rather than merely through communication of instructions to counsel. The accused must have the capacity, albeit at a basic level, to participate directly in the trial through questioning witnesses and communicating the defence to the Court.[35] As we have said, Mr Carter had over 50 previous convictions. Most are for dishonesty offending. He has twice been sentenced to imprisonment and on other occasions periodic detention and fined. So he is familiar with court processes. In the lead-up to the trial, District Court Judges emphasised to Mr Carter the importance of17 R v Carter DC Dunedin CRI-2011-076-255, 13 September 2012 (Minute of Judge O'Driscoll)at [5].18 At [5].19 R v Cumming, above n 12, at [50].legal advice and the challenges of defending a criminal trial. It is our general assessment that during the trial Judge Wade explained court procedures to Mr Carter and minimised the disadvantage of him being unfamiliar with the trial process and the rules of evidence.[36] The evidence shows that Mr Carter participated throughout the trial, understanding the basis of his defence and putting it to the Court through the questioning of witnesses and ultimately submissions to the jury.[37] It is to be noted that neither the Judge nor the prosecutor at the time of the trial thought that Mr Carter was unfit to represent himself. Mr Maze, when he represented Mr Carter prior to the trial, did not think that he was unfit to stand trial. Mr Maze noted in his affidavit that while communication was difficult with Mr Carter, at the time he did not consider that Mr Carter failed to understand him, and he always checked that Mr Carter did in fact understand him. He agreed with a description of Mr Carter as combative and "persecutory" but noted that this was notuncommon amongst defendants. Mr Maze, while accepting that Mr Carter's bluster may have masked a cognitive impairment, stated that it was not evident to him or anyone else at the time.[38] There was a suggestion that Mr Carter failed at trial to highlight the significance of evidence from his brother that may have assisted him. However, there is no affidavit from the brother and nothing to persuade us that anything the brother would have said would have helped Mr Carter at the trial. Mr Carter claimed prior to and during the trial that Mr Maze was arranging a video-link so that his brother could be called as a witness. Mr Maze said in his affidavit that "for the avoidance of doubt I did not receive instructions to arrange a video link to Australia". There was noevidence that Mr Carter made any effort to call his brother and we are far from convinced that Mr Carter truly believes his brother would have assisted him. There was also a complaint that Mr Carter was not able to arrange for certain pieces of metal to be brought to the Court but it is clear that metal was no longer available at the time of trial.[39] Mr Carter appeared to be prepared to say any absurd thing to divert blame from himself. His opening of the defence consisted largely of irrelevant material.His evidence showed almost a wilful refusal to respond to the Judge's straightforward request for him to explain his version of the particular events in question. But there was a consistent theme: that he was entirely innocent of the thefts and there was a police and wider (incorporating the courts) conspiracy against him. He was argumentative and at times belligerent. To give an example of his combative attitude when answering questions under cross-examination:Q. You yourself aren't always honest are you?A. Are you?Q. I'm asking you?A. You got caught lying in Invercargill just recently.[40] He accused the prosecutor who was cross-examining him of being a liar and told her to look at herself in the mirror. As can be seen, during the trial Mr Carter was proactive and assertive. His conduct on many occasions was rude and even abusive and he would take silly points and avoid obviously reasonable requests and questions. We have no doubt that on many occasions he irritated the jury by his actions. This was his choice. He was advised by the Judge to rein himself in but would not do so. His wilful bad behaviour does not mean, however, that the appeal should be dismissed. If in the end it meant the trial was unfair to him and there was a risk of a miscarriage of justice the Court would have to intervene.[41] The core truth that emerges from a close examination of the transcript of evidence, exchanges with the Judge and Mr Carter's opening is that he had no realdefence, save for the entirely improbable story that it was all Mr Hopwood. The overall impression that results from an examination of Mr Carter's performanceduring the trial is that he was pursuing an agenda of putting himself forward to the jury in the best possible light. Mr Carter is clearly a person who will persevere no matter what recommendations or efforts are made to encourage him to do things in a different way. We have no doubt that even if he had counsel acting for him or an amicus curiae, he would have insisted on pursuing his agenda of diversion and blame-shifting, leavened by the occasional improbable explanation.[42] Mr Carter insisted on interrupting the Judge and prosecutor in front of the jury, and on pushing his own diversionary or fanciful stories. In answering questions in cross-examination Mr Carter oscillated between absurd denials, suggestions that other persons had carried out the criminal acts, and attacks on allegedly corrupt police. His evidence is marked by unbelievable claims. For instance, he suggested that a court registrar changed documents to have him arrested. He seems to be bent on criticising the prosecution case, rather than explaining the strong evidence against him. It may well be that this is why he wished to act for himself.[43] In Ipo v R this Court noted that at the end of the day the issue is whether there is any real room for concern that there has been a miscarriage of justice.20 The evidence against Mr Carter in this case was overwhelmingly strong. It turned on evidence given by a number of different witnesses, all of whom identified Mr Carter. Mr Carter's responses throughout were vague and entirely unsatisfactory. He blamed a Mr Hopwood, who was never identified as a real person. He put forward as facts matters that were wholly inconsistent with the established reality. He was determined to pursue his own agenda.[44] In our assessment, the trial was fair. We touch on other specific complaints later, but it is significant that he did in the end tell his story of events to the jury. It was an absurd story, but it was told. A reading of the transcript reveals no unfairness. Given Mr Carter's agenda and attitude as we have outlined it, we cannot see how thetrial could have been more fairly conducted (save for some specific points made later) and we are left with no sense that the verdicts are unsafe.[45] A court may be cautious about appointing an amicus curiae, particularly when the charges are less serious. Here, in our assessment, the appointment of an amicus curiae would have made no difference to the outcome.[46] We conclude that this ground of appeal fails.20 Ipo v R [2012] NZCA 178 at [59].Cross-examination on prior convictions[47] Section 38(2) and (3) of the Evidence Act 2006 provides:(2) The prosecution in a criminal proceeding may offer evidence about adefendant's veracity only if—(a) the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and(b) the Judge permits the prosecution to do so.(3) In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:(a) the extent to which the defendant's veracity or the veracity of a prosecution witness has been put in issue in the defendant'sevidence:(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence:(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.[48] Permission may be given for cross-examination on previous convictions under s 38(2) of the Evidence Act if the defendant has challenged the veracity of a prosecution witness by reference to matters other than the facts at issue. It was argued by Mr Bott that the Crown should not have been given leave to cross-examine Mr Carter on his previous criminal convictions, most of which were for dishonesty offending.[49] Mr Carter in his opening had challenged the truthfulness of the prosecution witnesses. He had in fact sought to impugn the integrity of the Crown by alleging that he had had a relationship with a Crown prosecutor and that this had tainted the case against him. Effectively, he was saying to the jury that there was a police and prosecution conspiracy against him, dating back long before the events giving rise to the charges.[50] He appeared to put everything that had happened to him down to being a result of being involved with the Crown prosecutor and the police harassing him. Incross-examination he suggested to witnesses that the police encouraged them to lie. He suggested that witnesses had been told by the police what to say.[51] The essence of Mr Carter's case was a challenge to the veracity of all themajor prosecution witnesses and indeed the prosecution itself. It was based on them being part of a dishonest conspiracy to cause him harm by charging him with false allegations, and that conspiracy preceded the alleged thefts. There was therefore a very extensive challenge to the veracity of the prosecution witnesses by reference to facts other than the matters at issue. He had been warned of the consequences of doing this. This was an appropriate case for the granting of permission to cross-examine Mr Carter on his past convictions.[52] The Judge had set out his reasons for allowing cross-examination in a minute of 18 July 2013.21 He noted that he had given Mr Carter a clear warning prior to him electing to give evidence that if he repeated the allegations of witnesses conspiring with each other to pervert the course of justice by giving deliberately false evidence, there was a risk that the Crown would apply to cross-examine him on previous convictions. He told him that it might not be in his best interests for the prosecution to succeed in such an application.22 He noted that Mr Carter had launched into a lengthy statement about the conspiracy and he considered it appropriate that the jury should know "the background of the person making the current allegations".23[53] When a litigant is self-represented a Judge should be careful to ensure that the defendant understands the risk if the defendant moves to make a general veracity attack on a witness. The Judge did so. The consequence was that the Crown could similarly raise issues as to his veracity.[54] We would not wish to be seen as endorsing the suggestion that a reason for granting leave is to enable the jury to know the background of a person. That is not quite accurate. The rationale behind s 38(2) is that if a defendant has chosen to generally attack the veracity of the Crown witnesses on matters not related to the facts at issue, it may be appropriate for the Crown to be allowed to do the same, and21 R v Carter DC Dunedin CRI-2011-076-255, 18 July 2013 (Minute of Judge Wade).22 At [2].23 At [6].question the veracity of the defendant. Prior convictions may also be used for a propensity purpose, but only where they are raised for that purpose and meet the requirements of s 43 of the Evidence Act.[55] Under s 37(1) the veracity evidence must be substantially helpful in assessing Mr Carter's veracity. It was not argued for Mr Carter that putting his previous convictions to him was not substantially helpful. Given that Mr Carter had chosen to give evidence himself about the alleged conspiracy, we are of the view that evidence showing him to be dishonest on numerous occasions in the past was substantially helpful to the jury in an assessment of the truthfulness of this conspiracy evidence. The dishonesty convictions were from 2002 and before, but recent enough to still be highly relevant to showing Mr Carter's lack of veracity.[56] This ground of appeal fails.The summing-up on the prior convictions[57] A Judge will always direct a jury as to the purpose of evidence of prior convictions and the limits of that purpose, so as to avoid impermissible propensity reasoning. It should be made clear that the evidence is led only to challenge thedefendant's veracity. This follows from the words of s 38, which at s 38(2) refer tooffering evidence about a defendant's veracity only if the defendant has challenged the veracity of a prosecution witness.24 We consider this is an exception to the general rule that once admitted evidence can be used for all purposes.25 A jury should be warned not to use it as evidence to prove guilt. Thus the Judge should have directed the jury to the effect that the evidence as to the convictions were relevant only as to Mr Carter's veracity, and that the jury should not assume that the priorconvictions showed that he was guilty or the sort of person who was likely to commit the crimes charged or that he had a tendency to do so.[58] The Judge went a considerable way to do this. He said:24 Or if the defendant has offered evidence about his or her veracity: s 38(2)(a).25 Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54]. We note the helpful discussion in Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Thomson Reuters, Wellington, 2014) at [EV38.08]; and Simon France (ed) Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [EA38.08] and [EA40.06(1)].... but you do not use your knowledge of his prior criminal history to assist you as to whether or not he is guilty of the offences because to do so would be to apply false reasoning. What you would be saying was, "He's behaved badly in the past therefore he must have behaved badly this time." That is anexample of false reasoning.[59] The Judge went on to say "[t]he only purpose in your hearing about his prior criminal history is so that you may know something about the man who has beenmaking those allegations". Ideally, he should have gone further, and explained thatthe evidence was only relevant in the assessment of Mr Carter's veracity. However,given his very clear warning about impermissible propensity reasoning, we do not think this was a serious error. He also gave the standard warning against prejudice.[60] In any event, it is our assessment of the evidence that the jury could not have had any faith in Mr Carter's credibility, given the absurd explanations and assertionsthat he was putting to the jury. We see no risk that any omission in this area could have led to a miscarriage of justice.The Judge providing a speculative explanation for an evidential problem[61] In his summing-up the Judge addressed an inconsistency between the date on the hire company documentation (31 January 2011) and the 3 February 2011 date alleged by the Crown. The Judge stated that he did not know why the discrepancyexisted and gave an answer that he thought might explain it, saying it was "simply speculation on my part".[62] The Judge should not have speculated in this way. Such a theory would have been a matter for the Crown to raise by way of submission in closing if it wished to do so. However, there was no dispute the truck was hired and the alternative date of hire would not have removed the possibility of the offences being committed on the dates in the indictment. This is a very minor point and it would not have resulted in a miscarriage of justice.The Judge venting frustration with Mr Carter before the jury[63] Mr Bott raised two instances of the Judge expressing some exasperation with Mr Carter. On one occasion he said in front of the jury:Mr Carter, you've had two and a half years to get this case ready. And I'm not going to have the jury's time wasted because you can't be bothered toprepare properly.[64] Further, partway through the Judge's summing-up Mr Carter interrupted. It is not recorded what he said but the result was that he was removed from the courtroom. The Judge assured the jury that Mr Carter would not be prejudiced because "later on he [would] have the opportunity to read the transcript" of the summing-up.[65] We have examined the transcript. Mr Carter's conduct on regular occasionsthroughout the trial was belligerent, rude and obstructive. The trial lasted for a total of five days and Mr Carter's actions would have tried the patience of any judge. Wedo not regard the expressions of exasperation by the Judge as warranting any criticism. Mr Carter was extraordinarily argumentative. He did not accept rulings and was constantly taking points. He would interrupt the Judge and force the Judge to exercise firm control over him. The Judge had to retain control of the trial and make sure it was completed within a reasonable time. He had to be firm and very direct.[66] The Judge refrained from making any derogatory adjectival comments about Mr Carter and he told the jury not to allow its judgment of Mr Carter to be coloured by his pursuit of matters of little relevance. In this context he told the jury specifically not to allow any feelings of prejudice or hostility to colour its judgment and to put emotions to one side. We see no basis for criticism of the Judge.[67] This ground of appeal fails.Admissibility of handwriting evidence[68] Mr Bott was critical of the admission of handwriting evidence. The Crown had called a document examiner, Patricia James, who compared writing samples from the person who hired the truck used in the offending and a fax said to have been sent by Mr Carter to a deputy registrar at the District Court. The fax was seeking to obtain various items of scrap metal to be at Court for the trial.[69] Mr Bott submitted that there was no evidence confirming that the sample fax was in the handwriting of Mr Carter. While the handwriting evidence was at best qualified rather than conclusory, in the absence of a verifiable sample of Mr Carter's handwriting to support the comparison, this evidence should not have been admitted at all. Further, he submitted that it was unexplained how the fax sent to the Court was provided to the police for the basis of comparison.[70] However, the deputy registrar gave evidence as to how she came to receive the handwritten fax. The evidence was before the jury as to why she reached the view she did, and the jury could reach its own conclusions. Given the background to the fax being sent to the deputy registrar, the fax was not hearsay (it was said to come from the defendant) and it was relevant.Concerns regarding the identification evidence[71] Mr Bott raised various identification concerns. He said that one witness carried out an inadvertent dock identification of Mr Carter because when he was being cross-examined by Mr Carter he said "'I'll be back at eight o'clock.' That's what you told me". This submission was left undeveloped in the course of the oralhearing. The exchange related to the person who was in the truck that was stuck in the paddock, and it was not in dispute that that person was Mr Carter.[72] We are unable to see any real dock identification events through the trial. The cashier weighbridge operator who identified Mr Carter knew him and had had dealings with him in the three to four months prior to the relevant incident at the scrap metal company. The deputy registrar had received a fax from Mr Carter and had had many communications with him. Indeed, Mr Carter himself stated in cross-examination that he had spoken to the deputy registrar on many occasions. It is also to be noted that when Mr Carter was asked about the fax he avoided answering the question for a while, and eventually confirmed that he had arranged to have the fax sent but claimed not to know if it was in his handwriting. He asserted that his handwriting was always changing. He was being obviously evasive.[73] In summary, we have no concerns about the identification evidence.Conclusion on conviction appeal[74] We have identified some minor errors in the conduct of a difficult trial. In our view, a guilty verdict was inevitable. As we have outlined, Mr Carter was caught in the act of stealing the metal and that evidence and the other direct evidence meant that it was a very strong case from a Crown perspective. The conviction appeal fails.Appeal against sentence[75] On 12 September 2013 Mr Carter was sentenced to three years and threemonths' imprisonment.26 In Mr Bott's short submission he advanced Mr Carter'sappeal on the basis that the Court was not aware of his cognitive impairment. It issubmitted that the Judge's assessment of Mr Carter as "the most manipulative person I have dealt with in a very long time" and his statement that he had "absolute lack of remorse" was unfair.27[76] We do not accept that submission. The transcript shows Mr Carter to have been extraordinarily devious and obstructive in the way he dealt with the trial. He has shown no remorse. The Judge made clear that he did not take into account Mr Carter's conduct during the trial in sentencing except to observe that it demonstrated his lack of remorse.28[77] Section 9(2)(e) of the Sentencing Act 2002 lists as a mitigating factor the offender having a diminished intellectual capacity or understanding. This is a mitigating factor where there is a causative link between the lack of capacity or understanding and the offence. In E (CA689/10) v R this Court noted:29[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.26 R v Carter, above n 1.27 At [12].28 At [12].29 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 (footnotes omitted).[78] There can be no basis for a suggestion that Mr Carter's cognitive impairmentwas causative of the offending. This was not spontaneous offending, or offending arising out of a misunderstanding. It was a carefully planned operation to steal the metal, which involved hiring and obtaining a truck, cutting fencing, working out a route, loading the metal and selling it or endeavouring to sell it.[79] There were two thefts. We are far from satisfied that the thefts were the result of Mr Carter's mental impairment. Rather, he was committed to a criminallydishonest and relatively sophisticated plan. Any diminished capacity that Mr Carter may have does not reduce his culpability for this offending. Therefore, the substantive appeal against sentence must fail.[80] However, we consider that in one respect the sentencing process contained anerror. The Judge imposed an uplift of three months' imprisonment to reflectMr Carter's prior offending.30 But there were no convictions of a similar character after the year 2002. The Crown accepted that the Judge appeared to have overlooked the date of the earlier dishonesty offences and that there should not have been an uplift of three months' imprisonment. This concession was properly made. Wewould not normally make such a small change to a sentence as proposed, but giventhe Crown's explicit concession the appeal against sentence will be allowed to that extent.Result[81] An extension of time to appeal is granted. The application for leave to adduce further evidence on appeal is granted. The appeal against conviction is dismissed.[82] The appeal against sentence is allowed. With the support of the Crown, the concurrent sentences of three years and three months' imprisonment are quashed.Sentences of three years' imprisonment are substituted. The sentences are to beconcurrent.Solicitors:Crown Law Office, Wellington for Respondent30 R v Carter, above n 1, at [16].