THE QUEEN v LEE FRANCIS COLE [1999] NZCA 230 (18 October 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 377/99

THE QUEEN

V

LEE FRANCIS COLE

Hearing:	18 October 1999
Coram:	Richardson P Doogue J Robertson J
Appearances:	M.J. Thomas for appellant C. Muston for respondent
Judgment:	18 October 1999

judgment of the court DELIVERED BY DOOGUE J

[1] The following purported question of law was reserved pursuant to s. 380 of the Crimes Act 1961 by the District Court at Whangarei:

Can the doctrine of recent possession be left to the jury when the only evidence of possession is a fingerprint?

Background

[2] On 2 November 1997 the complainant's vehicle was broken into and property including three shotguns and ammunition was stolen.

[3] On 6 November 1997 the police executed a search warrant at a Whangarei address.Three shotguns and a quantity of cartridges were found at the address.Fingerprints from the respondent's right thumb and left little finger were found on an opened box of cartridges at the address.

[4] The respondent admitted living at the address "for a matter of weeks" with one of the two persons renting the property.No fingerprints of that other person were found on the stolen goods; nor were the fingerprints of any other identified person other than the respondent found upon them.The respondent said that he did not remember seeing any of the stolen property at the address at which he was living.The respondent said that he moved to Kaitaia, although it is not clear when.By implication it was between the date of the theft and the date of the search.The only explanation the respondent could give for his fingerprints being on the ammunition box was that:

It could have been lying around the house.I might have touched it. ...Could have touched it accidentally.

[5] The only possible inference from the respondent's statement was that his fingerprints got on to the box of cartridges when he was living at the address at which it was found.

[6] Subsequent to making his statement on 30 August 1998, which was when he was located, the respondent was arrested and charged with burglary and receiving. He elected trial by jury and was committed for trial on 13 November 1998.On 29 January 1999 the District Court heard an application by the respondent under s. 347 of the Crimes Act 1961.The District Court Judge determined that there was no evidence upon which a jury properly directed could convict the respondent of theft.He was not satisfied there was any evidence of possession or control sufficient to bring into operation the doctrine of recent possession.The Judge expressed the view that the basis for his decision was that in law a single fingerprint without more cannot constitute evidence of possession sufficient to trigger the doctrine of recent possession.He took the view the only relevant evidence as to the respondent having possession or control of the stolen property was the "fingerprint".At the instance of the Crown the Judge did not discharge the respondent under s. 347 and the respondent was found not guilty by a jury on 17 May 1999 as a result of a directed verdict.

[7] The present case on appeal was then stated, containing a truncated statement of the facts.

Discussion

[8] The real issue in the case before the District Court was whether there was sufficient evidence from which the jury could infer that the respondent was knowingly in physical possession of the stolen property after its theft.The fingerprints on the opened box of cartridges were but one element of the evidence available to the Crown.There were the facts that the box was open, had no other fingerprints upon it and was found inside in the house in which the respondent had been living.In addition, there was the accused's statement.Where the box of cartridges was found within the house was not made clear.It could have been relevant as could the respondent's movement in the period after the theft.The case proceeded upon a wrong basis.The fingerprints were but part of the relevant evidence.

[9] The touching of an object always occurs within a context.So do the resultant fingerprints.To concentrate upon the fingerprints to the exclusion of all else is to ask the wrong question.To determine whether the respondent's fingerprints were supportive of his knowingly being in possession of the box of ammunition, all the circumstances relating to the finding of the box of ammunition including where it was in the house, the respondent's movements between the theft and the finding of the box of ammunition and his explanation of events were relevant.

[10] If the circumstances were sufficient to enable an inference of knowing physical possession by the respondent, then control of the box for the purposes of legal possession may have been able to have been inferred.

[11] The fingerprints are but part of the evidence relevant to knowing physical possession and but part of the evidence relevant to whether either crime alleged against the respondent was made out.

[12] This is not a case where it is helpful to elaborate on the law relating to possession or the so-called doctrine of recent possession.It has come about through the wrong question being asked and answered in the District Court.

[13] To answer that question in this Court would compound the misunderstanding the question has already caused.

[14] We have been referred to a considerable number of fingerprint cases.In all of those relating to the possession of stolen goods the context in which the goods were found and the accused's explanation have been relevant to the determination.

[15] We record the Crown did not seek a retrial in this case should it have received an answer favourable to it.

Decision

[16] The Court declines to answer the question posed.The issue of whether the finding of fingerprints of an accused upon stolen property is sufficient to give rise to an inference of possession of the property must always depend upon all the circumstances of the case.

Solicitors

Crown Law Office, Wellington, for appellant

Thorne Dallas & Partners, Whangarei, for respondent