IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-000005 [2013] NZHC 1393

BETWEEN	JUNE SCOTT Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	4 June 2013

Appearances:	Appellant in person
T V Clark for Respondent

Judgment:	12 June 2013

JUDGMENT OF KEANE J

This judgment was delivered by	on 12 June 2013 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:
Crown Solicitor, Hamilton

SCOTT v NEW ZEALAND POLICE [2013] NZHC 1393 [12 June 2013]

[1]       On 18 January 2013, after a two day summary hearing in the District Court, Thames, Judge Marshall convicted June Scott of two thefts from Sharon Drought, while employed in her Kerepehi dairy between 28 October 2010 - 10 May 2011. Over that full period, the Judge found, she stole $7,471.30. On 24 December 2010 she stole $621.80.

[2]       For the first theft Judge Marshall sentenced Mrs Scott to 75 hours community work and required her to make $8,000 reparation. On the second he sentenced her concurrently  to  the  same  period  of  community  work.  Mrs  Scott  appeals  her conviction but not her sentence.

[3]       The issue at the hearing as on this appeal, was whether the Judge could be satisfied beyond reasonable doubt, on the prosecution’s largely circumstantial case, resting on a till tape record primarily, that over the full period Mrs Scott took as
‘refunds’ $13,168.50,  and  on  one day $621.80,  without  Mrs  Drought’s  consent. There was no issue that, if she did, that was dishonest and without any claim of right and with the intent to deprive Mrs Drought of the sums taken.

[4]     The Judge found the prosecution case ‘powerful’, even though it was circumstantial, and in the face of evidence given and called by Mrs Scott. On this appeal, Mrs Scott contends by contrast, the Judge’s decision was insupportable and unreasonable. The evidence as a whole did not establish, she contends, that any money was taken from the till, let alone by her.

[5]       Mrs Drought, Mrs Scott contends, was herself dishonest, and kept inexact and  incomplete  records.  Others  had  access  to  the  till.  Mrs  Drought  and  her co-employee, Wendy Kerry, had access. So too did Mrs Drought’s two sons, then 15 and 18, who lived with her, and her daughter, aged 20, who lived at the back of the shop.

Appeal jurisdiction

[6]       This is a general appeal under s 115 of the Summary Proceedings Act 1957. It

is by way of rehearing on the evidence taken in the District Court. On an appeal this

Court may confirm or set aside the conviction as it thinks fit.

[7]       To succeed on her appeal Mrs Scott must establish that the Judge made an error of fact or law, but I must assess that for myself while taking into account the advantage the Judge had of seeing and hearing the witnesses. This is not an appeal from a jury verdict, or one given by a Judge without a jury, where the Court reviews the evidence without substituting its own view.

[8]       That said, where the issue is as it is here, whether charges found proved, or verdicts reached, are supportable to the criminal standard on the evidence, and the case is  circumstantial,  the issue always  is  whether the cumulative effect  of the evidence carries that level of surety.

Decision under appeal

[9]       As the Judge recorded in his decision under appeal, the prosecution case rested primarily on the till record complicated by the fact that the till was one day out in date and one or two hours behind real time, depending on whether daylight saving applied.

[10]     The till, the Judge said, divided purchases into four groups. Group one related to food, including takeaways, group two to cigarettes and tobacco, group three to groceries and group four to phone cards. The till had a refund facility registered on the tape as RF.

[11]     Normal refunds, the Judge accepted, were not to any regular pattern. There could be none within a day or ten. They came about when items purchased were mistakenly rung up in the wrong group, or when an eftpos purchase was rejected, or when  goods  were  returned  and  a  refund  called  for.  The  sums  involved  were
negligible and related to identifiable transactions mostly shortly before.

[12]     The prosecution case, the Judge said, was that during the six months Mrs Scott worked in the dairy, frequently in sole charge, this usual pattern changed very significantly. Refunds were rung up that could not be related to any recorded prior purchase. They were for rounded up amounts, say $50 or $100. Even more unusually they could be for large amounts, in excess of $100 or even $200.

[13]     The prosecution case, the Judge said, was that these refunds coincided only with the days on which Mrs Scott worked and the inference he was invited to make, and did finally make, was that whenever these refunds were made Mrs Scott had abstracted cash from the till.

[14]     Mrs Scott, the Judge recorded, denied in evidence being asked for any refund, let alone the refunds on which the case against her rested. She denied, as she had when first confronted on 18 May 2011, taking any money from the till. She called witnesses to say they rarely saw her alone in the shop, and character evidence.

[15]     The Judge identified the prosecution case as largely circumstantial and asked himself whether, cumulatively, the items of evidence on which the prosecution relied sufficed to satisfy him beyond reasonable doubt Miss Scott had dishonestly taken cash from the till.

[16]     The Judge then assessed some 86 refunds, beginning on 28 October 2010 and ending on 10 May 2011 and in one instance only was there direct evidence. Martha Challis gave evidence that just after 7 am on 2 March 2011, on her way to work, she called in to settle her account and make some small purchases. She dealt with Mrs Scott. There was no-one else in the shop.

[17]     Her  account  stood  at  $130  and  that,  and  the  small  purchases,  came  to

$172.70. Though she normally paid by eftpos, on that day she paid in cash. She had been paid her wages the day before. The till tape showed that at 7.10 am groceries were sold for $172.70 and at 7.17 am $172.70 was refunded. Mrs Challis’s evidence was that she never received that refund and the Judge concluded that Mrs Scott must have abstracted the cash from the till.

[18]     In his analysis of the other transactions the Judge relied on inference. In 49 instances, including the Challis transaction, when Mrs Scott was in sole charge, involving refunds of $7,471.30, he found she had ‘siphoned off’ that amount. As he said, ‘it defies logic and common sense that refunds in the order of $40 - $250 would be rung on when there were no previous sales to this value’. They were ‘incapable of innocent explanation’.

[19]     In the other transactions, involving refunds of $5,697.20, when Mrs Drought and Mrs Kerr were in the shop for some part of Mrs Scott’s shift, and even though the pattern of refunds was identical, the Judge found that he could not be satisfied beyond reasonable doubt.

[20]     On the second charge, the Judge accepted the prosecution evidence that on 24

December 2010 Mrs Scott had stolen $621.80. Mrs Scott worked the full day and Mrs Drought only until 1 pm. At 1.55 pm there were two refunds, coming to $160, and at 2.24 pm three refunds, coming to $428.40. All, the Judge found, were out of the ordinary and must have involved theft.

Conclusions

[21]     On my own review of the evidence I am satisfied the Judge made no error and I agree with his analysis.

[22]     The wider evidence was that when Mrs Drought employed Mrs Scott she had run the dairy for some four years helped half time by Mrs Kerr, whom she employs to this day, and while they were in charge, both before and after the six months Mrs Scott was employed, refunds were invariably intermittent and small.

[23]     That changed in October 2010 when Mrs Drought employed Mrs Scott. Mrs Drought was to have an operation in February - April 2011 and needed someone to take her place over those months. It was only when she returned in April 2011 and found takings were down that she checked the till tapes and discovered the refund pattern on which the prosecution rested.

[24]     At the hearing, at which Mrs Scott was represented by experienced counsel,

there was no issue as to the accuracy of the till, or of the till tapes, apart from the fact, as the Judge recorded, that the tape was out as to day and to hour. There was no challenge made to the refund record as such.

[25]     Mrs Scott herself, when cross examined, agreed that when Mrs Drought and Mrs Kerr worked ‘the average refund worked out at around 20 odd dollars’, yet when she worked ‘they were almost eight times that amount, up to around $150.’ As Mrs Scott then said, ‘that’s what the paper work shows’.

[26]     In the scrupulous analysis he made of the 86 or so transactions in issue, beginning on 28 October 2010 and ending on 10 May 2011, the Judge only found Mrs Scott stole cash equivalent to the refunds made on those days, or part days, when she was unequivocally in sole charge. He was justifiably suspicious as to the others because they were to the same pattern. But because others were in the shop for part of those shifts, the Judge rightly gave her the benefit of the doubt.

[27]     On this appeal the first point Mrs Scott takes is that Mrs Drought herself was dishonest because she had, as she admitted in evidence, falsified post office records. The Judge found that did not affect her credibility. But what is more important is that what she had to say as to refunds was confirmed by the indisputable till tape record.

[28]     Mrs Scott’s second point was that Mrs Drought’s two sons worked shifts with her until March 2011, when daylight saving finished, and not as the Judge apparently understood Mrs Scott herself to say, only until the last quarter of 2010. Furthermore, their sister lived at the back of the shop. The Judge, Mrs Scott therefore contends, could not have been satisfied that only she had access to the till when the refunds were made. The children could have abstracted any missing cash from the till.

[29]     This possibility was advanced by Mrs Scott’s counsel at the hearing, but never as anything more. Nothing tangible was advanced to suggest that the family could have been accountable for the unusual refund pattern coinciding only with Mrs Scott’s shifts, or suggesting that it had begun before and continued after she was employed.

[30]	Mrs Scott’s appeal against her conviction is dismissed and, because she does

not appeal her sentence, it must now take effect.

P.J. Keane J