KIRBY v POLICE [2020] NZHC 770

KIRBY v POLICE [2020] NZHC 770 [22 April 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000007[2020] NZHC 770BETWEEN TREVOR PATRICK KIRBYAppellantAND NEW ZEALAND POLICERespondentHearing: 19 March 2020Appearances: A Bailey for the AppellantS Bicknell for the RespondentJudgment: 22 April 2020JUDGMENT OF NATION JIntroduction[1] A young man travels overseas for a short time. He arranges to leave computeritems with a family friend. One computer contains years of photographs and recordshe needs for his tax returns. On his return from overseas, he asks the friend to makethe property available to him. The friend refuses to do so unless the young man'smother does what the friend wants. Was the friend wrongly convicted of theft?[2] The appellant, Mr Kirby, was found guilty of one charge of theft.1 Judge Couchsentenced Mr Kirby to a fine of $1,500, reparation of $4,500 and ordered him to pay$130 in court costs.2 Mr Kirby appeals his conviction on the grounds the Judgereversed the presumption of innocence and burden of proof when determining the1 Police v Kirby [2020] NZDC 26457 (conviction judgment).2 Police v Kirby [2020] NZDC 26456 (sentencing judgment).charge, that inadmissible hearsay evidence was admitted and relied upon, and theJudge adopted illogical reasoning in support of his factual findings.Background[3] The complainant, Jeremy Thomas (Jeremy), resides in Queenstown andplanned an overseas trip between June and October 2018.3 Jeremy was due to departon his trip from Christchurch. In anticipation of his departure, Jeremy approached MrKirby and asked if he could leave his car at Mr Kirby's home and stay for two or threenights. This is what occurred. Mr Kirby had been a longstanding friend of Jeremy'smother, Michelle.[4] When Jeremy arrived at Mr Kirby's home, he had with him two computers andsome headphones which were stored in a brown box. One of the computers was anolder model and the other a new MacBook. It was agreed Jeremy would leave theitems with Mr Kirby and collect them when he returned.[5] While overseas, Jeremy sent a message to his father, Mark Thomas (MrThomas), in Queenstown, asking him to collect the box from Mr Kirby. Jeremy didnot discuss this with Mr Kirby.[6] Jeremy returned to New Zealand on 11 October 2018 and collected his car.Upon returning to Queenstown, he realised his father had not collected the property.Jeremy asked his father to contact Mr Kirby. According to Jeremy, Mr Thomasreported to his son that Mr Kirby said he still had the box.[7] On 25 November 2018, Jeremy went to Christchurch to collect the property.When he asked Mr Kirby for his laptop back Mr Kirby refused, indicating it was theonly hold he had over Jeremy's mother. This and another conversation on 6 January2019 were recorded by Jeremy.3 Because I refer to both Jeremy Thomas and his father Mark Thomas in this judgment, I will referto the complainant as "Jeremy" and his father as "Mr Thomas".[8] Throughout these conversations, Mr Kirby indicated he had the property in hispossession or would be able to recover it and was not going to return it until Michelledid what he wanted.[9] Mr Kirby stated, both in these conversations, and in his evidence in the DistrictCourt, that he had received threats in his mailbox that he believed came from Andy,Michelle's partner. Mr Kirby felt so threatened by these messages that he removed anumber of cars from his property, at considerable expense. It appears Mr Kirby haddemanded an apology from Michelle and Andy as well as reimbursement for the costof storing the cars.[10] In the conversation on 6 January 2019, Jeremy told Mr Kirby he had doneeverything he could to persuade Michelle to apologise or pay Mr Kirby. There wasnothing more he could do. Jeremy asked Mr Kirby if he would get his laptops back.Mr Kirby replied he would not.[11] Mr Kirby is a retired businessman. He represented himself in the DistrictCourt. In his evidence in the District Court, Mr Kirby denied he retained possessionof the property or knew where it was. He stated it was not at his address. He said hepresumed Mr Thomas had collected it. He believed the property had been in Jeremy'svehicle. Mr Kirby also suggested the items could have been stolen, as he had previousproblems with theft at his address. He accepted that, in the recorded conversations, hehad spoken as if he still had possession of the items and would make them available ifJeremy's mother and Andy did what he wanted. But, in evidence, Mr Kirby said, inmaking those statements, he had been lying because it was the only way he could bringpressure to bear on Jeremy's mother and Andy.[12] It is against this background Mr Kirby appeals his conviction.Principles on appeal[13] Section 232 Criminal Procedure Act 2011 provides that the High Court mayonly allow an appeal against conviction if satisfied the trial judge "erred in his or herassessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected or hasresulted in an unfair trial.4District Court decision[14] Judge Couch was satisfied beyond reasonable doubt that Mr Kirby retainedpossession of the computers and other items, or deliberately parted with possession ofthem. The Judge rejected Mr Kirby's version of events given in his evidence. TheJudge said Mr Kirby had no knowledge that the conversations with Jeremy on 25November 2018 and 6 January 2019 were being recorded. Accordingly, the Judgeconsidered Mr Kirby was being entirely candid and not lying during thoseconversations.[15] The Judge considered Mr Kirby had become obsessed with the idea thatMichelle and Andy were threatening him, and he wanted to use possession of Jeremy'sproperty to get back at them. He considered Mr Kirby's evidence given in the DistrictCourt to be unreliable and the recorded conversations were an honest reflection ofevents.SubmissionsAppellant's submissions[16] The first ground relied upon was that the Judge reversed the presumption ofinnocence and burden of proof in determining the charge. Counsel submitted theJudge assessed the evidence from the basis that Mr Kirby had a significant motivationto lie "to avoid a criminal conviction."[17] Secondly, the Judge relied upon inadmissible hearsay evidence. This relatedfirstly to evidence from Jeremy that, when he found he did not have the property, heasked his father to contact Mr Kirby. His father told Jeremy that he had rung Mr Kirbyand Mr Kirby said, "yes the box is here, it's sitting in front of the counter". The seconditem was a handwritten affidavit prepared by Mr Kirby. Mr Kirby said in evidence he4 Criminal Procedure Act 2011, s 232(4).sent this to Mr Thomas. Mr Thomas swore it before a JP and then returned it to MrKirby. Referred to in the affidavit and attached to it was a floor plan of Mr Kirby'sgarage and first floor area on which Mr Thomas had shown where, according to hisaffidavit, he had seen "the computer box".[18] The Judge treated both items of evidence as being hearsay and said theevidence needed to be treated with "caution". Counsel submitted the Judge erred innot determining whether or not the evidence was admissible. Furthermore, Mr Baileysubmitted, rather than treating the evidence with caution, the Judge appeared to haveplaced significant weight on it.[19] Thirdly, Mr Bailey submitted the Judge adopted illogical reasoning in supportof his factual findings. He argued it was illogical for the Judge to have decided that,in the second conversation, Mr Kirby would have continued to pretend he hadpossession and control of the property if this was not true, given Jeremy had made itclear there was nothing further he could do to have his mother and her partner complywith Mr Kirby's wishes.[20] Counsel argued Mr Kirby had been consistent in what he said in theconversations so the Judge should not have relied on that as reason to reject Mr Kirby'sevidence at trial that what he had said in the conversations was a lie.[21] In summary, Mr Bailey argued there had been errors made by the Judge andthey were errors that, individually and collectively, had a consequence in that they hadresulted in a miscarriage of justice.Respondent's submissions[22] For the respondent, Ms Bicknell accepted the Judge should have decidedwhether or not hearsay evidence was admissible before referring to it, even withcaution. She submitted the fact there had been some reference by the Judge to MrKirby having a motive to lie would not necessarily have resulted in a miscarriage ofjustice. She argued that, the way in which the Judge had considered how Mr Kirby'sposition had not changed, even when he had been told there was nothing more Jeremycould do to bring about what Mr Kirby wanted, was not totally illogical or indicativeof reasoning that was not open to him.[23] Ms Bicknell noted it is not in every case that a comment about the defendant'smotive to lie will result in a miscarriage of justice. The Judge in this case had providedother reasons for his decision.[24] Counsel submitted the Judge's findings were not illogical and his reasoningwas sound. Specifically, she referred to passages from the recorded conversationswhere Mr Kirby explains, with reference to the items, that he will "make an effort tofind them", "might've thrown them in the rubbish", they had "mysteriouslydisappeared", and that he had "given the box to someone else to look after". WhenMr Kirby's explanation that he had continued to lie in the recorded conversations wasconsidered in light of the entire conversation, his explanation was "impossible toaccept".[25] Overall, Ms Bicknell submitted that, in his decision, the Judge had to decidewhether what Mr Kirby said in the two conversations provided proof that he had beenin possession of the property and had deliberately withheld it from Jeremy or whether,with the evidence Mr Kirby had given in court, it was a reasonable possibility thateither he never had possession of the property or it had been taken by Mr Thomas orsomeone else without his knowledge. The Judge had found that Mr Kirby, in hisevidence in court, was not a credible witness. The Judge decided what Mr Kirby saidin his telephone conversations established the truth as to what he knew of the itemsand how he had dealt with them.[26] Even if the Judge had been in error in the way he dealt with hearsay evidenceor made a comment about Mr Kirby potentially having a motive to lie when givingevidence, this would not be enough to establish that a miscarriage of justice hadoccurred with his being found guilty of theft.[27] Ms Bicknell thus submitted the conviction is safe and the appeal should bedismissed.[28] She referred to Sena v Police in which the Supreme Court discussed the kindof reasons judges should provide.5 The Court acknowledged that "imperfection ofexpression is practically unavoidable, particularly in oral judgments."6 An "appellatecourt must take into account any advantages a trial judge may have had" and ought toexercise "customary caution".7DiscussionThe evidence that could prove theft[29] In his evidence, Jeremy explained how he had arranged with Mr Kirby to leavehis car and the items he was not taking on his travels at Mr Kirby's address. He said,the night before he left, he took photographs of everything. He had photographs ofthe headphones, a Dell computer and a brand new MacBook. He put what he wasleaving in New Zealand in a cardboard box. He said he asked Mr Kirby if he couldleave the box with him along with the car. Mr Kirby had said it would be fine forJeremy to leave his stuff there and collect it when he came back. Jeremy gave MrKirby the dates of his return from the travel.[30] While Jeremy was away, he asked his brother to contact his father to arrangefor his father to pick up the box of computer equipment. When Jeremy returned toChristchurch, he collected his car and drove to Queenstown. He did not collect thebox because he assumed the box had been picked up.[31] About a week after he was back, Jeremy realised he did not have the box andcontacted his father. It was in relation to that, he said in evidence, that his father rangMr Kirby and Mr Kirby said "yes the box is here, it's sitting in front of the counter".[32] At that point, the Judge intervened. He said "this is clearly hearsay" and thenadded, "while it is not necessarily inadmissible, it needs to be treated with somecaution". The Judge clarified the prosecution were not planning on calling Mr Thomasas a witness.5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 5756 At [37].7 At [38].[33] Jeremy then said he had come to Christchurch on 25 November 2018. He wentto Mr Kirby's house, was invited in and they talked. Jeremy recorded theconversation.[34] A disc with a recording of that conversation and the second conversation wereproduced by consent. This first conversation lasted some seven minutes. At thebeginning of that conversation, Jeremy said he needed his laptops to do his tax returnsand he could not because his laptops were with Mr Kirby in a box. Mr Kirby'simmediate response was to say, "well, look, I'll tell you what I'm not going to giveyour laptops back until I get the information from your mother. It's the only hold I'vegot over her". Jeremy said that they had an agreement he could collect the items whenhe got back from overseas. In response, Mr Kirby referred to the fact that Jeremy hadseen his mother. Jeremy said Mr Kirby should not hold him responsible for whatMichelle was doing. Again, Mr Kirby said "I'm sorry, it's the only hold" that he had.Jeremy said it was affecting not just himself but also his employer. Mr Kirby said "oh,I've, I've mislaid it" and "I, I don't know where it is". Jeremy said to him "you doknow where it is. It was here. You have my laptop". Mr Kirby interrupted saying"look, I'm sorry you've got mixed up with this. You can blame it on your mother".Jeremy made it clear he was there to collect his laptops to which Mr Kirby's responsewas "I had a deal with your mother and she shit on me". When asked as to why Jeremywas being held accountable for things his mother had done, Mr Kirby said "it's theonly hold I've got over her". When Jeremy said he was not going to leave without hislaptops, Mr Kirby said "I don't know where they are". When Jeremy persevered insaying that Mr Kirby had the laptops and that Jeremy would not be leaving withoutthem, Mr Kirby said "I'll make an effort to find them when I get, when I, when yourmother gives me " Mr Kirby then started talking about the complaint he had againstJeremy's mother.[35] At another point, when Jeremy insisted his laptops were with Mr Kirby, MrKirby said he would have to go and look to find them but he was not prepared to dothat until he had written Jeremy's mother a letter. The conversation ended with MrKirby reiterating that he was holding the laptops because it was the only hold he hadover Jeremy's mother. When Jeremy said this was not fair, Mr Kirby said that Jeremyhad been going to call in and pick up the items on the way through. Jeremy had notdone that, so he said "you didn't do it so I threw the – I might have thrown them in therubbish".[36] The evidence of Jeremy at that point established:(a) he had left the computer equipment and other items at Mr Kirby's addresswith Mr Kirby's agreement, on the basis he would be able to collect theitems on his return;(b) Mr Kirby knew the items had been left there on that basis;(c) Mr Kirby either still had the items or had dealt with them in a way hewould still be able to recover them and return them to Jeremy if Jeremy'smother acted in the way Mr Kirby wanted;(d) a reasonable inference could be drawn, from the fact Jeremy had contactedhis father, had not located the items and had gone to Mr Kirby's addressto ask for their return, that neither Jeremy nor his father had possession ofthe items; and(e) Mr Kirby was refusing to return the items to Jeremy as a way of indirectlyputting pressure on Jeremy's mother to act as Mr Kirby wanted.[37] Mr Kirby cross-examined Jeremy. He referred to Jeremy's evidence thatJeremy had put a computer in a box and asked where he had put the box. Jeremy saidit was in the spare room down by the front door, the bedroom he stayed in for the nightwhen he arrived at the house. Mr Kirby asked few other questions despite the Judgetelling him on several occasions he must give Jeremy an opportunity to comment onanything Mr Kirby might say differently about what happened to the property. Incross-examination, Mr Kirby did not suggest in any way that the property had not beenleft at his home. He did not suggest that Jeremy's father had collected the items. MrKirby obtained confirmation, as he said he wanted to, that he had been having arelationship with Jeremy's mother although, in response to a question from the Judge,he said it could have been a friendship relationship.[38] The Judge however asked a number of questions. As a result of thosequestions, Jeremy reiterated he had left the items in a spare room at the house for themto be collected when he came back from overseas and Mr Kirby had seen what wasbeing left there. The Judge asked why Jeremy's father had not collected the items.[39] Following those questions, Mr Kirby was asked if he had any questions. As aresult of that, there was an exchange where Jeremy confirmed he had left the items ontop of a set of drawers beside the door going into the garage. There were some furtherquestions asked by the Judge as a result of which Jeremy confirmed the items had beenleft on top of the chest of drawers, not inside them. Following that answer, Mr Kirbyput it to Jeremy that he was "telling porkies". Jeremy was adamant he was not lying.That had been where he put the box. Mr Kirby did not question him further.[40] Mr Kirby gave evidence. He began by going into some detail about hisrelationship over many years with Jeremy's mother and also his father. He talkedabout what happened when they separated. That led him to say Jeremy's mother wasin a new relationship. The Judge said Mr Kirby seemed "fixed" on events concerningJeremy's mother but he needed to know what Mr Kirby had to say about the items thathad been left at the house. At that point, Mr Kirby said Jeremy had asked if he couldleave his car there with his gear while he went overseas. He talked about Jeremyhaving left his car in the building. The Judge asked him where he understood the boxwas. Mr Kirby said "the only time I saw his computer was when he was sitting on thebed when I went through to do the washing one day and he was fiddling on it". Thishad been in the downstairs bedroom. He said, when he went overseas, Jeremy toldhim he had left it in the boot of the car and he had made a point of leaving a key to thecar so his father could call and pick it up. This was not a proposition that had beenput to Jeremy.[41] Mr Kirby then said, when Jeremy's father had rung him, he had presumed thatMr Thomas had picked up the items. Mr Kirby said he had contact with Mr Thomasbut, after he had not heard from Mr Thomas for a couple of months, Mr Thomas hadcalled him and said he knew where he last saw the box. Mr Kirby said that, on anearlier trip up from Queenstown, Mr Thomas had been at his home for a time and hadsaid he needed to pick up a box of Jeremy's things. Mr Kirby had said he would goupstairs and make a cup of tea. He said this was when Jeremy was still overseas. Hesaid Mr Thomas had told him that Jeremy had asked him specifically to do this.[42] He said, sometime after this, Mr Thomas had come upstairs and they hadconversed about various things before Mr Thomas left. Mr Kirby said: and we left – and I presumed he had picked up the computer box thing. Itwas just a cardboard box as I remember it, he used to drop his stuff in, and Ipresumed it had gone down to Queenstown.[43] With this evidence, Mr Kirby had thus confirmed that Mr Thomas had spokento him about needing to collect Jeremy's items. In the course of giving evidence aboutthat, Mr Kirby confirmed he had known the property was in a cardboard box as Jeremyhad explained. Mr Kirby did not say he had seen Mr Thomas take the box. He saidnothing about giving Mr Thomas a key to Jeremy's car so he could collect the boxfrom the car where, in evidence, he had said he understood Jeremy had left it.[44] Mr Kirby then said Mr Thomas had telephoned him later and had talked abouthaving seen the computer equipment at Mr Kirby's place. It was as a result of thatconversation that Mr Kirby had sent him a document in affidavit form, which MrThomas had signed and returned to Mr Kirby.[45] What Mr Thomas said in that affidavit was hearsay evidence as to whether MrThomas had actually seen those items on an earlier visit and as to where he had seenthem. Mr Kirby's evidence that, in response to a conversation with Mr Thomas, hehad sent Mr Thomas an affidavit in which he asked Mr Thomas to set out in writingwhat Mr Thomas had told him, was not hearsay evidence as to how Mr Kirbyresponded to the conversation he had with Mr Thomas. There was nothing in hisaccount of those events to suggest that, when Mr Thomas spoke to him about themissing items, Mr Kirby told Mr Thomas that he had already collected the property orthat Mr Thomas was not telling the truth in saying he had seen the items inside MrKirby's home. Mr Kirby said he had prepared an affidavit for Mr Thomas to confirmthis was what had happened. With his evidence, Mr Kirby thus confirmed there hadbeen a conversation with Mr Thomas about the property.[46] The Judge then questioned Mr Kirby as to why, in the conversations he hadwith Jeremy, Mr Kirby had indicated he was withholding the property to get somesatisfaction from Jeremy's mother. It was in responding to those questions Mr Kirbysaid he had been telling lies in those conversations. The Judge then said he wantedMr Kirby's explanation about the box of computers. In response to that, Mr Kirbysaid the only thing he could think of was that, when Mr Thomas came upstairs whenhe was meant to be picking up the computers, he must have left them on the floor andthey could have been stolen. He could only guess that Mr Thomas had taken thingsout of the boot of Jeremy's car and, instead of putting them in his Toyota Corolla, hemust have left them on the floor from where they had disappeared.[47] Jeremy was not challenged over the essential aspects of his evidence as to howhe came to leave his property with Mr Kirby, his evidence as to Mr Kirby knowing itwas there and his agreeing it would be returned to Jeremy on his return from overseas.Mr Kirby had told Jeremy on 27 October 2018 that he was keeping the property tohave a hold over Jeremy's mother. Given that and the way Mr Kirby said he dealtwith Mr Thomas when Mr Thomas spoke to him about the property, Mr Kirby'ssuggestion in evidence that the property had been collected by Mr Thomas or had beenstolen did no more than raise a fanciful possibility.[48] There was then the second conversation which took place on 6 January 2019when Jeremy met with Mr Kirby at a bar. That conversation began with Mr Kirby, atlength, talking about how he had been threatened, how he had to move vehicles thathad been in storage, what that cost, and of the grievances he had against Jeremy'smother and her new partner. Mr Kirby then talked at length about Jeremy's motherand her new partner. Jeremy responded in a way that indicated he heard andunderstood what Mr Kirby was saying. There was then this exchange:TK (Mr Kirby): Hold up. All right, I've just started to make notes but Ihaven't got it finished. What I would need before I manageto find these things of yours, which, it's not, they're not atyour place, I can tell you that straightaway (inaudible), youknow – um, they're not at my place, sorry.JT (Jeremy): So, so in the, in the box, in the box that I left at yours, therewas my old laptop, which is TK: I didn't check what was in it.JT: ei, it's about, it's about TK: I've, I've given the box to somebody else to look after.[49] This exchange ended with Jeremy saying how much he needed the MacBookback and Mr Kirby saying he would be writing out a list of what he needed and wouldpost it down to Jeremy. Jeremy explained he had done everything he could for MrKirby. He suggested Mr Kirby should go to the Police or to the courts to get arestraining order against his mother and her partner. Mr Kirby explained why he didnot want to do that. There was then this exchange:JT: You holding my laptops from me TK: I'm not holding them.JT: Oh, Trev. Ah, so what do you want then?TK: Ah JT: What do you want for me to get my laptops back?TK: Well, well, for a starter, she owes me 2,000, 2,000 for me having to shiftall my fuckin' cars and that [50] Later, Jeremy asked:JT: But why are you having a go at me or holding my laptops against me?TK: Because that's the only, that's the only hold I've got against them now.[51] At a later point in the conversation, Jeremy told Mr Kirby that 10 years ofmemories were on his computer. To that, Mr Kirby said "I'm not refusing to relea-,release the properties I haven't got the properties to release at this point, so itdoesn't matter". And later:TK: I'd given them to someone to store.JT: To store, so you've given them to someone to look after, so you knowwhere they are?TK: I, I, I can get them back at, at a given t-, at a given time, but unt-, unt-,until your mother come, comes, comes Ah, righto, the thing is, awritten apology for [sic] Andy for his threatening notes stuffed in myletterbox on June the 1st and June the 2nd 2018, and his agreement thathe or any of his associates will not visit the street I live on.[52] Over the balance of the conversation, there were a number of statements madeby Mr Kirby in which he reiterated that Jeremy was not going to get his property back.Mr Kirby was going to hold the property because it was a way of having a hold overJeremy's mother and her new partner, unless he got an apology from the mother's newpartner. The conversation ended with Mr Kirby saying Jeremy would not get theproperty back until he achieved the resolution he wanted with Jeremy's mother andher new partner.[53] At trial, Mr Kirby accepted that the recording of what he said during thissecond conversation was an accurate record of what he had said. In that conversation,he made a number of statements which provided compelling evidence that he hadpreviously been in possession of Jeremy's property and he knew it had not beenreturned to Jeremy or to anyone on Jeremy's behalf. There was no suggestion in thatconversation that the property had been collected by Jeremy's father or that it had beenstolen. There were statements clearly to the effect that, if Jeremy's mother and herpartner did as Mr Kirby wanted, he could have the property returned to Jeremy. Theonly reasonable inference that could and should have been drawn from that evidencewas that Mr Kirby knew where that property was and it had not been stolen from him.[54] On an appeal, the Court must reach its own view on the evidence. On theevidence I have referred to, I am quite satisfied the charge had been proved beyondreasonable doubt.The Judge's comment that could have reversed the onus of proof[55] The first ground of appeal as to the Judge reversing the onus of proof arose outof a statement the Judge made to Mr Kirby when the Judge was questioning himtowards the end of his evidence. The Judge said there were some things he wished toput to Mr Kirby, to be fair to him and to give him an opportunity to comment on them.In that context, the Judge referred to Mr Kirby having said he had been in business for30 years, that he was always honest and straight up with people, yet his explanationfor the charge of theft was that he had repeatedly and deliberately lied to Jeremy. TheJudge asked Mr Kirby why he would have behaved in that way when there might be asubmission that he had an incentive to lie to avoid criminal prosecution.[56] Mr Bailey submitted that, with this comment, there was an indication the Judgehad assessed Mr Kirby's evidence from the basis that he had a significant motivationto lie to avoid a criminal conviction. He said this approach was clearly impermissibleand had the potential to result in a miscarriage of justice.[57] In Mann v Police, Dunningham J allowed an appeal where a defendant hadbeen convicted through the Judge accepting a Police officer's account of what he hadobserved of how a car was being driven on a sustained loss of traction charge and hadrejected the defendant's account of what occurred.8 In deciding what evidence toaccept, the Judge, in his decision, had said, "who has the reason in this case not to betruthful? Well, of course, the defendant and I know it is not easy when you have beencharged with something". The Judge had also gone on to say, "the defendant of coursehas more to lose and I suspect the defendant has tried to reinvent what has happened".[58] Dunningham J referred to relevant authority. She concluded the Judge hadused inappropriate logic in his judgment. In the circumstances of that case, she wasunable to determine that the Judge's credibility findings stood independently from theerroneous reasoning. For that reason, she allowed the appeal and set aside theconviction.[59] In Mann, Dunningham J referred to relevant statements from the Court ofAppeal in R v Leef:9[29] It is, however, one thing, and a perfectly proper approach, forprosecuting counsel to suggest an accused has a motive to lie and has liedbecause of previous convictions, the improbability of his evidence, its conflictwith proved facts or other circumstances of the case. If that approach is taken,the Judge may choose to reflect those submissions in summarising theprosecution case. But it is quite another matter, and an incorrect approach, forprosecuting counsel or the Judge to suggest in submissions or in summing-upthat an accused's motive to lie results from no more than the fact that he orshe is the accused.[30] If it is suggested that the accused's status as such is his or her solemotive to lie, such a direction invites more searching scrutiny of an accused'sevidence than that of the complainant or other Crown witnesses. It almostinevitably risks skewing the burden and standard of proof against an accused.Further, as the High Court said in Robinson, remarks such as the italicisedsentence jar when measured against the presumption of innocence and, in this8 Mann v Police [2015] NZHC 588.9 At [20]-[22], citing R v Leef CA14/06, CA 57/06, 24 August 2006.country, do not sit easily with the New Zealand Bill of Rights Act 1990, s25(c).[32] Here, even though the Judge again mentioned the burden and standardof proof after commenting on the appellant's motive, our view is that thebluntness of the comment about Mr Leef's motive to lie greatly outweighedthat passage. Read as a whole, the effect of [77] of the summing-up was toleave the jury with the clear impression that the accused had a strong motiveto lie simply because he was the accused. That impression, taken with theJudge's direction two paragraphs later to apply "robust common sense" to theresolution of the facts, leads to the conclusion the summing-up was unfair tothe accused. For the reasons discussed above and in Robinson the appropriatecourse is to allow the appeal against conviction and order retrial.[60] Dunningham J also referred to the Supreme Court decision in R v Stewart:10[26] A witness should not be accused of having a motive to lie withoutthere being an appropriate evidential foundation for the accusation. Ageneralised allegation that an accused person has a motive to lie simply toavoid conviction is particularly serious because it subverts the presumption ofinnocence. Only if the accused were presumed guilty could there be any basisfor the suggested motive.[61] In the current case, the Judge's comment was made by way of a question andframed as only a possibility. There was nothing in the Judge's decision to indicate hehad adopted this line of reasoning in ultimately concluding that Mr Kirby's evidenceat trial was not credible.[62] In contrast to Mann, this was not a situation where the Judge was having tomake an assessment as to the credibility of a defendant as against the credibility ofanother witness. The Judge had to decide whether he could accept as truthful theevidence Mr Kirby had given in court when that evidence was in conflict with thestatements he made in two conversations with Jeremy.[63] Also, in contrast to Mann, the question was not asked simply because Mr Kirbywas facing a criminal charge. The Judge asked the question because of the way MrKirby had acknowledged he had lied in making the statements in the two conversationshe had with Jeremy.10 At [23], citing R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425.[64] The Judge also posed the question in a way which indicated it might notnecessarily be the appropriate way for him to make an assessment as to Mr Kirby'scredibility when giving evidence. He asked the question as if it was something thatmight be submitted by the prosecutor. The possibility of Mr Kirby lying in hisevidence because he was facing a criminal charge was not expressed with the bluntnessor in the context of a decision or summing up in the way that had led the Court ofAppeal to decide in R v Leef there had been unfairness of the sort that necessitated aretrial.[65] In his decision, the Judge discussed the evidence Mr Kirby had given. Hereferred to it as being "initially very discursive, to the point where" the Judge had todirect him to focus on the key events.11 The Judge referred to his having asked MrKirby to comment on the fact he had continued to falsely claim to have the computerswhen it was clear there was nothing further Jeremy could do to influence his mother.He said he had continued to lie because he wanted to continue putting pressure,through Jeremy, on his mother. The Judge said "I find this explanation impossible toaccept, given the manner in which the conversation had progressed".12 The Judge saidthat "[a]s to the fate of the computers themselves, the defendant gave what was initiallyvery confusing evidence".13 The Judge then referred to Mr Kirby's evidence that MrThomas had presumably picked up the box. The Judge said "[c]learly that was wrongas the box was never returned to Jeremy Thomas", a conclusion and inference that wasopen to the Judge on all the evidence.14[66] The Judge then said, when pressed further, Mr Kirby had rather vaguelysuggested that somebody might have come onto his property and stolen it. The Judgenoted this was not an explanation that Mr Kirby suggested when initially questionedby the Police much closer to the time of those events.[67] After discussing Mr Kirby's evidence, the Judge said:11 Conviction judgment, above n 1, at [15].12 At [16].13 At [18].14 At [19].[24] I can only find the defendant guilty if I am satisfied beyond reasonabledoubt that he did retain possession of the computers and other items inquestion, or if he deliberately parted with possession of them. I can only dothat if I reject his version of events.[68] The Judge concluded:[25] Having heard all the evidence today I do reject the defendant's versionof events. It is clear that the defendant had no knowledge that hisconversations with Jeremy Thomas were being recorded on 25 November and6 January. From their content, I am entirely convinced that the defendant wasbeing candid in what he said in those conversations and that he was not lying.[26] He had become obsessed with the idea that his former friend MichelleThomas and her relatively new friend, this man Andy, were threatening himunjustly and unreasonably and he wanted to use the possession of thesecomputers to get back at them through Jeremy Thomas.[27] In essence, my conclusion is that I am left with no reasonable doubtthat what the defendant said in those conversations was correct and that whathe said in his evidence today is unreliable.[69] In his consideration of the evidence and in his decision to reject Mr Kirby'sevidence at trial as being untruthful, the Judge made no mention of the fact that, whengiving evidence, Mr Kirby had a motive to lie.[70] It appears the Judge was trying to be fair to Mr Kirby in asking him to commenton a possible motive for him to lie in his evidence. Neither a prosecutor nor a Judgeshould suggest to a jury that such a general motive would be relevant to an assessmentof credibility. The Judge should not have asked about it in the way he did.[71] Nevertheless, I have not been persuaded that, with the way the Judge asked MrKirby to respond to what would have been an impermissible line of reasoning, therewas ultimately a miscarriage of justice because of such an error. In the particularcircumstances of this case, there was good reason to reject Mr Kirby's evidence at trialthat he had lied in the two conversations as unreliable without having to consider inany way what his motive for lying in Court might have been.The Judge's reference to hearsay evidence[72] The second ground of appeal related to what was submitted was theimpermissible way the Judge had relied on hearsay evidence. When Jeremy first saidin evidence his father had reported to him that Mr Kirby indicated he still had theproperty, the Judge noted this was hearsay evidence. At the time, the Judge said hehad to treat the evidence with caution. In this regard, the Judge was in error.[73] In terms of s 18 Evidence Act 2006, the Judge had to decide if:(a) the circumstances relating to the statement provide reasonable assurancethat the statement is reliable; and(b) either—(i) the maker of the statement is unavailable as a witness; or(ii) the Judge considers that undue expense or delay would be caused ifthe maker of the statement were required to be a witness.[74] The Judge made no assessment as to these matters but simply proceeded on thebasis the evidence could be admitted, although had to be treated with caution.[75] The Judge referred to this evidence in his decision. He noted that, in hisevidence, Mr Kirby said he could not recall such a conversation with Mr Thomas sothere was disagreement about whether such a conversation had occurred. Counselargued that this hearsay evidence must have been material to the Judge in reaching hisdecision.[76] There was nothing in the Judge's decision which would suggest he relied onhearsay evidence, as to Mr Kirby telling Mr Thomas that he still had the property, inrejecting Mr Kirby's evidence at trial as to Mr Kirby having lied to Jeremy in therecorded conversations. He noted that Mr Kirby had not accepted he had talked to MrThomas in the way Jeremy had referred to. To the extent there was a rejection of MrKirby's evidence as to the disputed conversation, it was based on the Judge observingthat Mr Kirby's evidence, that he thought Mr Thomas must have collected the items,was wrong. The Judge reasonably inferred on all the evidence that Mr Thomas hadnever collected the property.[77] Because he had not relied on hearsay evidence in this respect, it is notsurprising the Judge did not formally caution himself as to how he ought to weigh suchevidence in the balance. The Judge had however noted, when first observing theevidence was hearsay, that it had to be considered with caution.[78] This was not a case where any adverse inference could be drawn from the factMr Thomas was not called as a witness for the prosecution. Neither the Police norJeremy could reasonably have anticipated that Mr Kirby's defence at trial would be tosuggest the property had been collected from his address by Mr Thomas. Jeremy hadspoken to Mr Kirby twice in an attempt to obtain the property. In neither of thoseconversations had Mr Kirby suggested the property had already been collected by MrThomas.[79] There was thus no reason for the prosecution to think they would have to provethat Mr Kirby had been in possession of the property at a time Mr Thomas had visitedMr Kirby's address or that, at trial, they would have to prove Mr Thomas had notcollected the property.[80] The way in which the Judge referred to this hearsay evidence and of the needto treat it with caution was not an error that led to a miscarriage of justice. It was not,in Mr Bailey's terms, an error of consequence.[81] The same can be said of the way the Judge dealt with the affidavit from MrThomas in which Mr Thomas portrayed where he had seen the property when he hadvisited Mr Kirby's house. It was Mr Kirby who sought to put that hearsay evidencebefore the Court. The Judge noted it was hearsay evidence. At the time Mr Kirbysought to put this document before the Court, the Judge said it carried "very littleweight" and had to be treated with caution. Again, the Judge should first have decidedwhether to admit Mr Kirby's evidence as to the statements made by Mr Thomas in theaffidavit.[82] Mr Kirby's evidence as to what led to his preparing that document and the factthat he prepared the document was not hearsay evidence insofar as it providedevidence as to Mr Kirby having communicated with Mr Thomas over the property andthe fact Mr Thomas had said to Mr Kirby that he had seen the property and Mr Kirbydid not, either through any verbal response or in his subsequent actions in preparingthe affidavit, do anything to indicate he rejected what Mr Thomas had told him. Therewas nothing in the Judge's decision to indicate he had relied on the hearsay evidencefrom Jeremy, as to what Mr Thomas reported as having been told by Mr Kirby, asweighing against the honesty and reliability of Mr Kirby's evidence at trial on thecrucial issue as to whether what Mr Kirby had said in the two conversations was all alie.[83] For those reasons, the error the Judge made in not clearly ruling that statementsin the affidavit were hearsay and inadmissible, for the purpose of proving the truth ofstatements referred to in them, has not led to a miscarriage of justice. Had this hearsayevidence not been admitted at all, it would have made no difference to the wayadmissible evidence was sufficient to prove the charge against Mr Kirby.Submitted illogical reasoning[84] The third ground was that there had been illogical reasoning when the Judgecommented that it had made no sense for Mr Kirby to say that his whole reason forfalsely pretending to Jeremy that he was still in control of the property was to have ahold over Jeremy's mother and her partner, when he knew from what Jeremy had toldhim that there was nothing Jeremy could do to have those people act in the way MrKirby wanted.[85] It was open to the Judge to adduce from all the evidence presented that MrKirby was either lying in the recorded conversations or in his evidence before theCourt. In the recorded conversations, Mr Kirby's motivation was consistent. Theevidence given before the Judge contained many inconsistencies. The fact Mr Kirbydid not know he was being recorded during the conversations did make it more likelythat he was telling the truth in those conversations.Conclusion[86] This was not a case where the Judge's determination required an assessmentas to the credibility of different witnesses. The evidence of Jeremy was unchallenged.That evidence, with the hearsay evidence put to one side, together with evidence fromMr Kirby over how he had dealt with Jeremy and Mr Thomas, was more than sufficientto prove the essential elements of the charge of theft which had been brought againstMr Kirby.[87] The only evidence which might have detracted from the strength of theprosecution case was Mr Kirby's evidence that, in his two conversations with Jeremy,he had lied in indicating he had been in possession of the property and was refusing toreturn it to Jeremy as a way of putting pressure on Jeremy's mother and her newpartner to take certain action.[88] The Judge rejected Mr Kirby's evidence in this regard, deciding that what MrKirby had said in the two telephone conversations was correct and what he said inevidence at trial was unreliable. The trial Judge was at an advantage in making thiscredibility finding through hearing Mr Kirby's evidence as it was given.[89] The Judge did not rely on inadmissible hearsay evidence, or the possibility thatMr Kirby had a motive to lie in giving his evidence because he was facing a criminalcharge, in rejecting Mr Kirby's evidence at trial.[90] For valid and permissible reasons, the Judge decided that what Mr Kirby hadsaid in the two conversations, as to how he had been in possession of the property butwas choosing not to return it, was correct. The conclusions he reached in this regardwere more than open to him. On my assessment of all the evidence, the conclusionthe Judge came to was fully justified given the uncontested and admissible evidence.[91] I am thus satisfied that, at trial, there was no error of consequence. There wasno error that, in the circumstances of this case, produced a miscarriage of justice.[92] Accordingly, Mr Kirby's appeal is dismissed.Solicitors:A Bailey, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.