THE QUEEN v DANNY JOHN CANCIAN [1999] NZCA 144 (9 August 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 444/98

THE QUEEN

V

DANNY JOHN CANCIAN

Hearing:	24 May 1999
Coram:	Blanchard J Heron J Goddard J
Appearances:	T G Vogel for the Appellant C L Mander for the Crown
Judgment:	9 August 1999

judgment of the court delivered by GODDARD J

The Facts

[1] The appellant was employed by Remarkable Homes Limited ("Remarkable Homes") as a contractor.In 1996 the company was seeking to purchase second-hand scaffolding for construction purposes.In November the appellant offered Mr McKernan, the company's director, an option to purchase some scaffolding for $1,000. Mr McKernan said this scaffolding "wasn't legit, it was `hot' [and] we weren't interested in at all".The following year, on 4 or 5 February 1997, the appellant offered to sell Mr McKernan some different second-hand scaffolding.This scaffolding comprised two tower blocks, each about 5 metres in height.The price for both tower blocks was $5,700 inclusive of GST.The appellant said the scaffolding belonged to a friend of his in Wainuiomata who was quitting construction work and this was the reason for the sale.Mr McKernan said he was assured by the appellant that this scaffolding was "legitimate".

[2] About three days later, on 8 February, a 5 metres scaffolding tower, the property of Blue Truck Scaffolds Limited ("Blue Truck") was stolen from a building site in Lower Hutt.This scaffolding tower was on hire from Blue Truck to an unrelated third party, Mr Hira.On 10 February the appellant advised Mr McKernan that he had obtained the scaffolding Remarkable Homes required.He then enlisted the aid of a sub-contractor to Remarkable Homes, Mr Spicer, to assist in the uplifting of the scaffolding and delivery to Remarkable Homes.Mr Spicer said the scaffolding was uplifted from the appellant's home address in Taita.

[3] Upon delivery, Mr McKernan wrote a cheque for $5,700 in favour of the appellant's family trust for which he received a receipt.

[4] In November 1997, some of the scaffolding sold to Remarkable Homes by the appellant was erected on a Remarkable Homes building site in Ngaio.It was there identified by Mr Fyfe, the Manager of Blue Truck, as part of the lot stolen whilst on hire to Mr Hira on 8 February.The remainder of the stolen scaffolding was then identified by Mr Fyfe back at the premises of Remarkable Homes in Lower Hutt.

[5] The scaffolding identified at the Ngaio site and at the Lower Hutt premises matched exactly the quantity of scaffolding stolen in February 1997 from the lot hired to Mr Hira.All of it had Blue Truck identification markings, although these had been considerably altered and disguised.

The Charges in the Indictment

[6] The indictment contained two alternative charges.The first alleged theft in the following terms:

The Crown Solicitor at Wellington charges that Danny John Cancian on or about 8 February 1997 at Lower Hutt, did steal scaffolding, exceeding in value the sum of $300.00, the property of Blue Truck Scaffolds Ltd.

[7] The second alleged receiving as follows:

And the said Crown Solicitor further charges, as an alternative charge, that Danny Johnny Cancian on a date unknown between 7 February 1997 and 11 February 1997 did receive from a person unknown scaffolding, exceeding the value the sum of $300.00, the property of Blue Truck Scaffolds Ltd, before then stolen or obtained by a crime, knowing at the time of receiving the same that the said scaffolding had been stolen or dishonesty obtained.

The Evidence for the Crown

[8] The Crown produced photographs at trial of the scaffolding alleged to have been stolen by the appellant from Blue Truck or received by him.Mr Hira identified scaffolding in the photographs as identical to that which he had hired from Blue Truck and which had been stolen from him on 8 February.Mr Fyfe also gave evidence identifying the scaffolding from the photographs.

[9] In his opening address to the jury, the Crown prosecutor stated that "the scaffolding bought by Remarkable Homes from the accused, exactly matched what had been hired by Blue Truck to Mr Hira...".As it turned out that opening statement was incorrect.The evidence subsequently adduced was that the scaffolding identified on the building site in Ngaio, as belonging to Blue Truck, was only one of two tower blocks sold to Remarkable Homes by the appellant.That fact is clear from the following excerpt of Mr McKernan's evidence:

Q. So can you confirm that the scaffolding at the Ngaio site is the same scaffolding purchased from the accused or different?

A. It was the same scaffolding.

Q. At the time did Remarkable Homes Ltd have any other scaffolding sets apart from that scaffolding?

A. There was two tower blocks - one belonged to Blue Truck Scaffolds Ltd the other ones instant scaffold which were both purchased from the accused at the time the only other ones are those painter's scaffolds I mentioned earlier.

[10] Essentially therefore, Mr McKernan's evidence was that Remarkable Homes had purchased two tower blocks from the appellant, one of which belonged to Blue Truck and the other of which was instant scaffold.His evidence in this regard was thus consistent with the evidence given by Messrs Hira and Fyfe at trial.

[11] The Crown's case relied on the doctrine of recent possession and centred on the close timing between the theft from Mr Hira and the appellant's coming into possession of the stolen scaffolding. The only contrary explanation was that given by the appellant in his video interview with the Police.

[12] In summing up to the jury, the trial Judge summarised the Crown's case as follows:

The Crown says that it is quite clear from the evidence that the accused was in possession of stolen scaffolding as at 10 February 1997.You can, it is submitted infer guilt from that very recent possession of stolen property.The accused told Mr McKernan that he had it in his possession and duly went away and returned with that stolen scaffolding.

The Appellant's Evidence at Trial

[13] The defence case was essentially as explained by the appellant in his video interview with the Police; namely, that the scaffolding he had sold to Remarkable Homes comprising two 5 metre towers had been legitimately purchased by him from another person.The vendor, he said, was one Shane Hair.He produced a receipt, purportedly signed by Mr Hair.Mr Hair did not, however, appear to give evidence at trial:nor did any enquiries made by the Police locate his whereabouts or establish the identity of such a person.

Grounds for Appeal

[14] Sentencing in this matter did not take place until approximately four months after trial.Just prior to sentencing defence counsel learned that, whilst half of the scaffolding sold by the appellant to Remarkable Homes was the property of Blue Truck, the origins of the other half had never been identified.In fact, the unidentified half of the scaffolding remained in the possession of Remarkable Homes.The appellant submitted that the Crown must have been aware of this at the time of trial but had failed to fully and frankly present that detail to the jury:this omission, it was submitted, amounted to a relevant irregularity which may have influenced the verdict and thus deprived the appellant of a chance of acquittal.That being so, a substantial miscarriage of justice within the meaning of the proviso to s.385(1) Crimes Act 1961 may have resulted.

[15] The nub of this submission (that because not all of the scaffolding which came into the appellant's possession and was on-sold by him has been identified as stolen) is that it raises the reasonable inference that the appellant did not know that any of the scaffolding he on-sold was stolen.Thus the Crown's omission to present the full evidential picture may have compromised his ability to defend himself to full advantage - materially misled him to his disadvantage - and deprived him of the chance of acquittal.

Conclusion

[16] Although the Crown prosecutor opened on the basis that the Crown would prove that the scaffolding bought by Remarkable Homes from the appellant "exactly matched" that which had been hired by Blue Truck to Mr Hira, that was not what the evidence established and nor was it how the Crown put its case to the jury in closing the trial.

[17] The excerpt from Mr McKernan's evidence, quoted above, makes it clear that only one tower block was the property of Blue Truck and the other tower comprised instant scaffold.The identity and origin of the stolen Blue Truck scaffolding as part of that sold by the appellant to Remarkable Homes was established by Mr Fyfe and Mr Hira.

[18] The Crown closed to the jury on the basis that the appellant was in possession of stolen scaffolding as at 10 February 1997 and that guilt could be inferred from his very recent possession of that stolen property.

[19] The defence accepted that the scaffolding was stolen - that it was stolen on or about 8 February - and that its value was well over $300.The defence acceptance of this is reflected in the Judge's summing up, when he summarised the case for the defence.

[20] The issue now raised by the appellant on appeal did not emerge until just before sentencing, which took place approximately four months after the trial. It was apparently at that point that the appellant learned the origin and identity of half the scaffolding he had sold to Remarkable Homes as a `job lot' could not be established.The Crown's evidence at trial was not inconsistent with that however:it founded simply on proof that stolen scaffolding, in the form of a 5 metre tower, had been sold by the appellant to Remarkable Homes.

[21] In his video interview with the Police, the appellant's explanation was that he had purchased all of the scaffolding he sold to Remarkable Homes from Shane Hair, a person unable to be traced.That explanation was clearly rejected by the jury.The fact that only half the scaffolding could be proved to have been stolen could not have affected the jury's acceptance or otherwise of that explanation:either the jury accepted the Shane Hair story or it did not.It is therefore impossible to see what difference the fact that only half of what the appellant had sold was stolen, could have made to his essential defence.

[22] The appellant complains that he was denied the opportunity to run his case differently, including the basis on which he made the election whether to give evidence.It is impossible, however, to discern substance to that complaint, as the appellant's defence at trial was in accordance with his earlier explanation to the Police.Thus it was for the jury to accept or reject that explanation.

[23] In summary, there is no evidence that the Crown misrepresented the case against the appellant at trial by material omission; or that the jury were misled over the stolen scaffolding sold by the appellant to Remarkable Homes. Nor does any miscarriage of justice arise from any perception of denied opportunity for the appellant to have conducted his case differently.

[24] The appeal against conviction is dismissed.

Appeal Against Sentence

[25] The sentence imposed upon the appellant in respect of this offending was imposed in conjunction with separate offending comprising 35 counts of obtaining $32,154.49 from Remarkable Homes by false pretences.The total sentence was one of 18 months imprisonment suspended for two years together with a sentence of eight months periodic detention.Reparation in the sum of $32,154.49 plus $2,850.00 (being half the value of the scaffolding sold to Remarkable Homes) was ordered.

[26] The appellant had earlier appealed his conviction for false pretences.In the event that he succeeded in that appeal, he wished to pursue an appeal against sentence in this case.The appeal in respect of the false pretences charges has now been dismissed.The appellant therefore does not now pursue the sentence appeal in this case, which is also dismissed.

[27] If the appellant has not recommenced serving the term of periodic detention imposed then he should immediately do so with the first reporting date of Saturday 14 August 1999 at Woburn House, 40-44 Bloomfield Terrace, Lower Hutt.

Solicitors:

Luke, Cunningham & Clere, Wellington, for the Crown

T G Voge, Wellington, for the Appellant