IN THE Court of appeal OF new Zealand
	
CA625/2012
[2013] NZCA 396

BETWEEN	
DAVID LEIGH WILLIAMS
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
30 July 2013	

Court:	
French, Goddard and Simon France JJ	

Counsel:	
Appellant in person 
A J Bailey as Amicus Curiae
H W Ebersohn for Respondent

Judgment:	
27 August 2013 at 11.30 am	

JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)
Introduction
[1]	Mr Williams was found guilty by a District Court jury of four counts of theft by a person in a special relationship.  The presiding Judge, Judge Farish, sentenced him to 250 hours’ community work and ordered him to pay reparation.
[2]	Mr Williams now appeals his convictions on two grounds.
[3]	The issues raised by the appeal are:
(a)	Did the editing of a pre-trial statement require a specific direction from the trial Judge regarding the onus of proof?
(b)	Did the behaviour of the trial Judge indicate to the jury that she believed Mr Williams to be guilty?
Factual background
[4]	Mr Williams was employed as a salesperson in a furniture shop.  The Crown alleged that he took cash from five sales and pocketed some of the money instead of accounting for it by paying it into the till.  Mr Williams was charged with five counts of theft, each count representing one of the impugned sales.  At trial, unchallenged evidence was given by the customers about the various sales and the amount of money that had been paid.  Evidence was also given that usual accounting practices at the store had not been followed and that the sales in question had been handled by Mr Williams.
[5]	Mr Williams elected to give evidence.  He strongly denied any wrongdoing.  He gave explanations for some of the discrepancies in the relevant records, but for the most part said he would only be speculating as to what may have happened.
[6]	The jury acquitted Mr Williams on one count but found him guilty on the other four counts.
Discussion
Pre-trial statement
[7]	The first ground of appeal relates to a written statement made by Mr Williams to the police.  Before the trial, it was agreed that the following excerpts in italics should be deleted:
Q	What you appear to be telling me is that you have not taken the money even though each one that does not match up appears to be when you were working and with your customers.  Why would somebody be trying to set you up?
A	Ok, well the answer to that is I’ve had literally 100’s of transactions with Canary Furniture.  If I was made aware at the time then I would be able to answer it.
[TM] is a dodgy business man.  He does not pay his PAYE.  I believe that [TM] is in so much debt with so many people around town that he believes that this is one way that he can get a small amount back.
I believe that all transactions were recorded as I was told on day one of my employment.  Had I known there is no way I would have allowed other people to handle cash and paperwork as this would have left me exposed to theft and Fraud.
At the time of these allegations I had received many $1000’s in a settlement therefore I had no cause or reason to steal.
Further to this paragraph.
[TM] employs illegal immigrants – knowing that they have no work visa and takes money from customers for furniture that he knows that he can’t supply.
[8]	Originally, Mr William’s argument was that his trial counsel was incompetent and should not have agreed to remove the two passages.  However at the hearing before us, the position taken was that the removal was appropriate because the passages could have exposed Mr Williams to the risk of having his previous convictions for theft adduced in evidence under s 38 of the Evidence Act 2006.  The argument was that the police officer’s question “[w]hy would somebody be trying to set you up” should also have been removed.  Alternatively, the Judge should have given a specific direction to the jury that there was no onus on Mr Williams to explain any discrepancy in the company’s records or to identify anyone else who might be responsible.
[9]	According to the argument developed by Mr Bailey, it was incumbent on the Judge to give such a direction because the officer’s question “[w]hy would somebody be trying to set you up” was a question that carried with it a wider implied onus on Mr Williams.  If uncorrected, the suggestion in the question that Mr Williams was required to rebut the allegations created a real risk that the jury may have reasoned in an impermissible way, especially when the suggestion was combined with the fact that Mr Williams’ answer to the question was edited, the fact that the focus was very much on Mr Williams and the fact that not every employee who had the opportunity to steal the money was called to give evidence.
[10]	We disagree.  In our view, the question was inconsequential and would not have made any difference to the outcome.  Further, the Judge’s summing up (which included the tripartite direction) and the question trail she gave the jury would have left the jury in no doubt about the correct onus of proof.
The Judge’s conduct
[11]	Mr Williams contends that the Judge was biased against him.  In support of this contention, he makes two allegations.
[12]	The first allegation he makes is that after asking him some questions, the Judge turned her head away from the microphone and said: “I’m sorry Mr Williams, but receipt books are kept next to the till and so writing a receipt and taking money and not putting the money in the till is quite simply not believable.”  According to Mr Williams, up until that point the jury had been attentive and shown every sign of accepting his evidence.  However after the Judge made this comment, everything changed.  The jury leaned back and dropped their shoulders, their body language giving the clear impression that they thought he was guilty.
[13]	The allegation made by Mr Williams against the Judge is obviously a serious one.  However, in our view, the allegation is not credible.  We say that for the following reasons.
[14]	First, the alleged comment has not been recorded on the audio tape despite the sensitivity of the court microphones and despite the fact that it was supposedly sufficiently loud for both the jury and Mr Williams, who were on opposite sides of the Court either side of the Judge, to hear.
[15]	Secondly, despite the alleged comment being an outrageous one for a judge to make, neither Mr Williams nor his trial counsel did anything about it at the time.  Mr Williams claimed that he told his lawyer but that his lawyer had “too many other things going on” and did nothing.  When asked if he has raised it with his trial counsel since, Mr Williams claimed that he has but that the lawyer in question does not recall the Judge making the comment and does not recall Mr Williams ever telling him about it.  In our view, it is highly improbable that a lawyer would not recollect being told by his client that a judge had made such an outrageous comment, if the lawyer had been told.  It is also implausible that a lawyer having heard the comment or been told about it would not have taken any action at the trial.  Mr William’s trial counsel is an experienced criminal lawyer.
[16]	Thirdly, there is no evidence from anyone else at the trial that the comment was made.
[17]	Fourthly, it does not make sense for the Judge to have made the comment at the juncture Mr Williams says she made it.  The topic of the proximity of the receipt book and the till had already been dealt with several questions before.  Previously, Mr Williams had alleged that the Judge made the comment at a point where the transcript says “inaudible”.  However, Mr Bailey and Mr Ebersohn, having listened to the tape, advised that the inaudible portion appeared to be a further portion of Mr William’s answer. 
[18]	The second allegation made against the Judge is that her tone throughout the trial and in particular when she was questioning Mr Williams was one that assisted the prosecution and made it clear to the jury that she did not believe Mr Williams.
[19]	Mr Bailey invited the Court to listen to the relevant portions of the tape. We have done so but find nothing inappropriate in the Judge’s tone.  We would add for future reference that the Court is most unlikely to be willing to listen to a tape of a hearing unless a proper evidential foundation has first been laid.  Our willingness to do so in this case should not be taken as generating any expectation to the contrary.
Outcome
[20]	Neither ground of appeal is sustainable.
[21]	The appeal is accordingly dismissed and the convictions confirmed.

Solicitors: 
Crown Law Office, Wellington for Respondent