THE QUEEN v TONI COLIN REIHANA [2001] NZCA 48 (22 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 350/00 CA 371/00

THE QUEEN

V

TONI COLIN REIHANA

Hearing:	20 March 2001
Coram:	Tipping J
	Robertson J
	Young J
Appearances:	H F Croft for Appellant
	S P France for Crown
Judgment:	22 March 2001

INTERIM judgment of the court DELIVERED BY YOUNG J

Introduction

[1] Toni Colin Reihana was convicted in the District Court at Christchurch on a charge of receiving and sentenced to 5 months periodic detention.He now appeals against conviction and sentence.

Factual background

[2] At the heart of the case were two white Honda Prelude cars: one referred to as the "Cashel Street car" and the other as the "Barbadoes Street car".Both came to the attention of the police on 15 January 1999.The Cashel Street car was found by the police at 597 Cashel Street.This was an address occupied by a relative of the appellant.The Barbadoes Street car was found by the police at 468 Barbadoes Street which was the home address of the appellant.

[3] The police were initially suspicious that the Cashel Street car had been stolen.The registration plate which was attached to this car (HY 9374) had obviously been issued many years before the car had been first registered. Further, this registration plate did not match the registration listed on the warrant of fitness (PS 9142).The number plate on the Barbadoes Street car was PS 9142.This vehicle had no warrant of fitness.

[4] The initial police thinking appears to have been that it was the Cashel Street car which had been stolen and that the warrant of fitness, which was found on that car, had originally been issued in respect of the Barbadoes Street car.As it was to turn out, however, the Cashel Street car had not been stolen.It belonged to the appellant's girlfriend.Its registration number was PS 9142 and the warrant of fitness found on that car belonged to that car. So the PS 9142 registration plate on the Barbadoes Street car had, in fact, been taken from the Cashel Street car.The HY 9347 number plate found on the Cashel Street car had been removed from a vehicle which belonged to the appellant's daughter.

[5] The essence of the Crown case was that:-

1. A white Honda Prelude car, registration number RM 447 belonging to Tiffany Jane Mangos, was stolen in Christchurch on 9 February 1998.

2. This vehicle was located by the police at the appellant's home address at Barbadoes Street on 15 January 1999 and was the vehicle referred to throughout the trial as the Barbadoes Street car.

3. This vehicle was received by the appellant knowing that it had been dishonestly obtained.

[6] There was no issue at trial that Ms Mangos' Prelude had, indeed, been stolen.What was in issue was whether that was the Barbadoes Street car and, if so, whether the appellant had received it knowing that it had been dishonestly obtained.

[7] As to whether the Barbadoes Street car was, indeed, the car which had been stolen from Ms Mangos, the Crown case was:-

1. The motor in the Barbadoes Street car had the same number as the engine number of the car which had been stolen from Ms Mangos.

2. There was no indication that this motor had ever been taken out of another vehicle and placed in the Barbadoes Street vehicle.

3. The chassis number which had originally been on Ms Mangos' car had been ground off and had been replaced by the chassis number from the Cashel Street car.

[8] On the second issue (dishonest receipt), the Crown case was based on:-

1. Indications of ringing associated with the switching of number plates and the removal of the chassis number from the Barbadoes Street car and its replacement with a chassis number which had come from the Cashel Street car.

2. The implausibility of the appellant's explanations.

[9] The appellant's explanation, as it finally emerged during discussions with the police and at trial, was along the following lines. He had acquired the Barbadoes Street car as a result of discussions which started in a pub and which came to involve a man called "Rangi" and another man called "Phil" who was a car wrecker.He bought the car from Phil for $500. The purpose was to provide parts for the Cashel Street car.After its acquisition, the Barbadoes Street car was towed from Phil's wrecking yard (which was somewhere near Brougham Street in Christchurch) to the Barbadoes Street address at which it was eventually found.The car had no number plates.Phil told him that the number plates had been handed into the Post Office.The engine, which was in the Barbadoes Street car when it was seized by the police, must have come from the car stolen from Ms Mangos (given the identical engine number) but he did not necessarily accept that the Barbadoes Street car, itself,was the car which had been stolen from Ms Mangos.Phil had told him that the engine had, at one stage, been "cooked".He had seen the engine partly dismantled.He claimed at trial that this was consistent with the engine having been replaced at some time.He denied grinding off the chassis number from the Barbadoes Street car but he accepted that he had placed the chassis number from the Cashel Street car on the Barbadoes Street car.His explanation for this was that he had done so because that car was operable and he wished to drive it around.

[10] The appellant's explanation, as just described, did not emerge as one coherent whole.It is an amalgam of what was said to the police on three separate occasions and, as well, the stance taken by the appellant at trial. The way in which the explanation emerged left it open to the Crown to assert that it had evolved over time to meet the details of the Crown case as it developed.As well, there were a number of difficulties with, and, perhaps, inconsistencies in, the explanation which we need not explore in this judgment.

[11] The fundamental issue which we have to address relates to the first of the occasions on which Mr Reihana was interviewed. This was on 18 January 1999. At around 9.45 p.m, a police party arrived at the Barbadoes Street address of the appellant.That party included Constables Syme and Webley.Each of them, apparently independently, spoke to the appellant.According to those officers, the discussions focused on the Cashel Street vehicle because at that time they suspected that this car had been stolen.

[12] The salient features associated with the evidence given as to these discussions are as follows:-

1. Constable Syme claimed that the appellant told him that he (the appellant) did not know the whereabouts of the original number plate for the Cashel Street car and that he had acquired this car for parts for his other Prelude (apparently a reference to the Barbadoes Street car).

2. Constable Webley said that the appellant told him that the motor of the Cashel Street car was "stuffed" and that he had been purchased from a mate called Rangi for spare parts for his other car.Constable Webley also said that the appellant had told him that he did not know where Rangi had obtained the car.

3. What is a little confusing about this evidence is that the Cashel Street car was not, in fact, stolen and there was no obvious reason why the appellant would have sought to create a false provenance for that car in his discussions with the police.

4. At trial, the appellant asserted, in cross-examination and probably in his closing address, that he and the constables were at cross-purposes with remarks that he made referring to the Barbadoes Street car being taken by the constables as referring to the Cashel Street car.

[13] There were subsequent discussions between the appellant and another police officer, Constable Clare, which took place on 26 January and 9 February.In the course of these discussions, the "Rangi explanation", supplemented by references to "Phil", was attributed to the Barbadoes Street car.

The course of trial

[14] The appellant represented himself at trial. His cross-examination of the Crown witnesses tended to be argumentative and was often not focused on what was truly in issue. The trial Judge, however, tidied these problems up by determining the substance of the points which the appellant was seeking to make and then putting those points explicitly to the prosecution witnesses.

[15] The appellant did not give evidence.

[16] There is one other aspect of what happened at trial which we should mention.In cross-examination ofMs Mangos, the appellant explored why she had not been asked to identify the Barbadoes Street car as being the vehicle which had been stolen from her:-

Q. The police at no time thought it prudent to call you into the station and view this allegedly stolen car, did they?

A. No they didn't.

Q. So this car could have been had pink lining, with you know wire spoked wheels or something and you still wouldn't have known, you wouldn't have identified it as your car would you?

A. No but they said they had enough evidence that it was my car, so they didn't see any need for me to come in and see it.

[17] Constable Clare, who appears to have been the police officer who dealt with Ms Mangos had a slightly different account of why there was no attempt made to have her identify the car.The cross-examination of Constable Clare on this point was as follows:-

Q. Why then did you not see it as prudent at any time to take the supposed owner of this supposedly stolen car, down to the police station to verify whether this car was in fact hers?

A. The reason she was not asked to inspect the vehicles was because both vehicles essentially were identical, and she would not be able to tell by looking, simply at both vehicles, which vehicle or if indeed either of the vehicles, used to be owned by her.

Q. Well, how would you know that unless you took her down there, I mean, you know, there might have been distinctive marks that she goes "yes that's my car because she scratched the paintwork off such and such, you know why didn't you do it?

A. Because both vehicles were essentially identical.It had been at least 12 months since the car was stolen and it didn't seem prudent at the time.

Q. That view, that Inn [sic] action is really possibly analygous [sic] to me being charged with a particular person's murder and you haven't even identified the body, it's a situation like that isn't it, you are saying a car is stolen and you haven't even got to first base and proved it stolen have you?

A. What's the question?

Q. You haven't proved that the car is stolen have you?We are not talking about the motor, we are talking about the car itself.

THE COURT:

Q. Constable Mr Reihana does have a point about the possibility of Miss Mangos identifying her car through some form of distinctive mark on it.So, somewhere in the interior or even somewhere on the exterior, did that occur to you at the time?

A. It was discussed with Miss Mangos.However, during our conversation, effectively said, it was, umm how shall I put it, the topic was addressed.

Q. Hmm hmm?

A. She was not willing to come down.She believed she could not offer any assistance in identifying it by looking at it.

THE COURT:

Your last question, Mr Reihana, really is a matter you can put to the jury, but a question of this witness's opinion as to whether or not the police can prove that that vehicle was stolen is really irrelevant in that context.

MR REIHANA:

Can I firstly ask you to ask the jury to well, ignore what the constable has just said about his communications, hearsay communications with the supposed owner of the car for her to come down and view the car and she didn't want to. That's hearsay, it is not admissible.

THE COURT:

At the end of the day it was the constable's call, as I have indicated, you have a point there, because it may well have been the prudent thing for the constable to have done even if Miss Mangos ddn't think she could identify it. That was his responsibility, but I come back to the point that the issue which you were putting to the constable in your question is a matter which you can put to the jury in your address, all right?

There this matter was left but the appellant returned to it later in cross-examination:-

Q. I just want to backtrack, where we started a point I have just come across here.You say that in regard to whether you thought it, or whether you thought it prudent to get the supposed owner of this supposedly stolen Honda, you say that when you spoke to Miss Mangos, that you acknowledge that you said earlier on that she did not want to come in to identify the car because she didn't think she could assist you.Do you recall saying that?

A. That's right.

Q. And yet today, when Miss Mangos gave her evidence, at page 3, line 19, she says "no, but they" (you guys) said they had enough evidence and that it was my car, so they didn't see any need for me to come in and see it".Now, that's a complete contradiction to what you've told me isn't it, what she said today in her evidence and what you said earlier on in your evidence is contradiction there, would you not acknowledge that?

A. That's a different version of events yes, I acknowledge that.

Q. No. What I'm saying is the honest young lady has said that you didn't see any need for her to come in to view the car, which contradicts what you said in your evidence that she didn't want to come in, because she didn't think she could help or be of assistance.Do you see those two scenarios clash or contradict each other?

A. They quite plainly do, yes.

The basis of the appeal against conviction

[18] The primary focus of the appellant's concerns relate to the way in which the Judge dealt with the issue of lies.The appellant is concerned by what he regards as the undue emphasis by the Judge on what the Crown said were his lies and failure by the Judge to address what was said to be the lies of the police as to why Ms Mangos did not attend at the police-station to identify the car.

[19] There is no other point made in support of the appeal against conviction which can, sensibly, be advanced.

The summing up

[20] The alleged lies, on the part of the appellant, were dealt with in the Judge's summing up as follows:-

While I am dealing with what Mr Reihana allegedly said to Constable Clare during those interviews, they are of course relevant in particular in respect of the third element, the element of guilty knowledge, which Mr Reihana again aptly described during his address to you yesterday as the second base which the Crown must pass.

If you were to accept what Mr Reihana said to Constable Clare, as representing a true account of the circumstances in which he came into possession of Miss Mangos' Honda Prelude, and this of course presupposes that you are satisfied on that issue, then you must of course acquit Mr Reihana.

The second possibility is that you might conclude that what Mr Reihana told Constable Clare might reasonably possibly be the truth.In other words, you would not be prepared to accept it without reservation, but you might not be prepared to reject it as untrue either.Again, in that event, the Crown will have failed to discharge the burden of proof, and the verdict again must be not guilty.

The third possibility is that you might reject what Mr Reihana told Constable Clare as untrue. If that is the conclusion which you reach, you must nevertheless still be satisfied that the only reasonable inference which can be drawn in all the circumstances is that Mr Reihana knew that the car had been stolen when he came into possession of it.

While on that general issue, you will recall that in his address to you yesterday Mr Rapley alleged that in his dealings with the Police Mr Reihana told several lies, which related more particularly to Mr Reihana's dealings with the police officers other than Constable Clare. You will recall that Mr Rapley contended that Mr Reihana told a lie to Constable Syme about the whereabouts of the registration plate for the Honda Prelude which was found at Cashel Street. He also contended that Mr Reihana told a lie to Constable Webley about the ownership of that vehicle.

It is very important that I explain to you that use to which any lie which is told by an accused can be put. The first important principle to emphasise, in effect, to use Mr Reihana's analogy, the first base in this context, is that you must be satisfied that a lie has in fact been told, before it can be considered by you in the context of your deliberations.If an untrue statement, or a statement which appears to be untrue, can be explained by other factors, for example, confusion between the questioner and the person being questioned, or for some other reason, then of course you could not be satisfied that what was said was said deliberately falsely, and you would not be satisfied that a lie had been told at all.

However, if you were to be satisfied that Mr Reihana lied either to Constable Syme or to Constable Webley, or in any other respects, it is very important that you understand the limited use to which any such lie can be put in your deliberations.

That is because, as a matter of common sense human experience, people can lie for a variety of reasons.Those of you with recent experience of children, who have found that the hand of a child is perilously close to something sweet in the refrigerator or the pantry, will know what I am talking about, because the claim is often made that the hand happened to be there accidentally, and that it was something particularly healthy, such as yoghurt or a wafer biscuit, which was the target of attention.People, both adults and children, tell lies for a variety of reasons, often because of panic or confusion, as apparently the easy way out in a particular situation, to buy time, or because of a variety of factors of that nature.

You must take that into account when deciding whether you should consider that any lies which you are satisfied that Mr Reihana told to the Police are relevant in the context of your assessment of the case.Even in that event, it is very important to understand that a lie which is told by an accused is relevant only in respect of the credibility, in other words the honesty, of any other statement or explanation which the accused has given, in particular, in the context of this case, to the Police.In other words, if Mr Reihana told a lie or lies to either Constable Syme or Constable Webley, that may affect your assessment of the honesty of, for example, the explanation which he gave to Constable Clare.

Put very shortly, it is very important that I emphasise to you that a lie which is told by an accused does not add to the Crown case and does not therefore prove guilt, either by itself or in combination with other evidence. Its only relevance relates to your assessment of the credibility of anything else which the accused has said to the Police. (emphasis added)

[21] The Judge dealt with the lies allegedly told by the police in this way:-

On the other hand, the defence case [in respect of identification of the car] is that is a reasonable possibility that the car which was found by the police at Barbadoes Street was not Ms Mangos' car and contained only the engine from her car.In respect of that issue, Mr Reihana challenged Constable Clare's evidence regarding his inspection of the vehicle, and he also emphasised the fact that, for differing reasons, as given by Ms Mangos and Constable Clare, no inspection of the Barbadoes Street car was made by her to see whether she could confirm whether in fact it was her car.

Our views as to these directions

[22] The first part of the direction of the judge which was set out in paragraph [20] above was broadly in the form of the orthodox "three possible effects" standard direction which is often given when an accused has given evidence, see R v McI [1998] 1 NZLR 696.It can also be given appropriately, at least in some circumstances, where there has been an exculpatory statement made out of court.The third of the possible effects referred to by the Judge was that the jury might reject the truth of what the appellant said to the constable but would nonetheless only convict if satisfied that the only reasonable inference in the circumstances was that the appellant knew that the car had been stolen when he came into possession of it.So this was, in part, a lies direction.

[23] The second part of the direction, which is placed in italics, is a reasonably orthodox lies direction (save, perhaps, for the refrigerator analogy) and it was obviously given by the Judge because the Crown prosecutor, in his closing address to the jury, had contended that the appellant had lied on 18 January when spoken to by Constables Syme and Webley.The direction by the Judge was tailored to the circumstances of the case only to the extent that it brought to the attention of the jury the possibility of confusion. Obviously it could usefully have been more specific and referred to the contention made by the appellant that the constables had mistakenly assumed that the appellant, on that occasion, was talking about the Cashel Street car when, in fact, he was talking about the Barbadoes Street car.However, we are less concerned about the detail of what was said as opposed to the fact that the Judge saw it as being necessary to give a comprehensive lies direction at all.

[24] The lies which the Crown Prosecutor relied on seem to us to have been no more than a function of the "Rangi explanation" being associated with the Cashel Street car.In a situation where the police thought that the car which had actually been stolen was the Cashel Street car but where the appellant was well aware that the this car had not been stolen but, on the Crown case anyway, must have been uncomfortably aware that the Barbadoes Street car had been stolen, the most likely explanation for what happened was that the police officers and the appellant were, indeed, at cross-purposes with the appellant talking in reference to the Barbadoes Street car (which, on the Crown case, he knew was stolen) and the police assuming that he was talking about the Cashel Street car (which they believed had been stolen).There was, in fact, no sensible reason to suppose that the appellant would have provided false details as to the ownership and history of the Cashel Street car and as to its number plate (which was actually sitting on the Barbadoes Street car which was then at the premises at which the interview was taking place).

[25] Against that background, the lies argument advanced by the Crown Prosecutor bordered on the silly and could only have distracted the jury's attention from the more obvious point that the appellant's explanations throughout had not been consistent but had rather grown and developed to accommodate the facts of the case as they emerged.So it would, perhaps, have been sensible for the trial Judge to have told the jury that the obvious explanation for what the Crown contended to be lies was simply that the appellant and the constables had been at cross-purposes. On this basis, the lies issue raised by the Crown Prosecutor could have been disposed of simply and sensibly.

[26] In the result, the Judge chose to direct on lies in a way which gave more credence to the Crown arguments than they appear to have deserved and what he said, because of its abstract nature, would not have been entirely easy for the jury to follow.

[27] That we, with the benefit of hindsight, are of the view that the issue could have been more deftly handled, does not mean that the way in which the Judge addressed this issue was wrong.Although the lengthy direction on lies was heavy-handed and disproportionate to the issue to which it was addressed, there is nothing incorrect in what the Judge told the jury.The confusion issue was left to the jury.The remarks were intended to be and would have been regarded by the jury (if they understood them at all) as being favourable to the appellant.As well, the point must be kept in proportion.Whether or not the accused had given the police false details in relation to the Cashel Street car was an issue of minimal significance in the case as a whole given that the primary focus of the jury must have been on the Barbadoes Street car. We see no risk of a miscarriage of justice on this score.

[28] The way in which the judge dealt with the inconsistency between the evidence of Ms Mangos, on the one hand, and Constable Clare, on the other, seems to us also to have been sufficient.He identified the issue to which this inconsistency was relevant (the determination of the question whether the Barbadoes Street car was, indeed, the car which was stolen from Ms Mangos). In context, the direction was, we believe, appropriate.The issue was, of course, canvassed at length in cross-examination with at least one intervention by the Judge lending some support to the point which the appellant was making.

Disposition of appeal against conviction

[29] In the circumstances the appeal against conviction is dismissed.

The appeal against sentence

[30] The appellant presented a significant sentencing problem for the judge. The only previous conviction which the appellant had for an offence involving dishonesty was for unlawfully taking a motor vehicle for which he was sentenced in January 1979 to a fine of $150 and disqualification from driving for one year.

[31] He is receiving an invalid's benefit and a fine commensurate with the seriousness of the offence could not practically be imposed.

[32] The appellant's position (supported by an ACC certificate provided by his doctor) was that a work related accident in 1993 had left him with "minimal work fitness", limited to one hour's activity at any one time during which he was not to lift weights greater than 8 kilograms.

[33] The pre-sentence report concluded in this way:-

At interview Tony [sic] Reihana presented as a man disinclined to be helpful to the Probation Service and to the Court.

He was erratic in his attendance at Community Service and has indicated that he would not comply with a sentence of Periodic Detention.He was negative in his response to the suggestion that the offence be discussed and he refused to give permission for the release of any information beyond that which could be obtained from his Doctor.

Doctor Dawson says that given his health problem Tony [sic] Reihana is unsuitable for a sentence of Periodic Detention outside of tasks like sorting paper.

Altogether it has been very difficult for the author of this report to recommend a suitable sentence in this case.

RECOMMENDATION

A community-based sentence is not indicated as appropriate at this time.

[34] It appears from the Judge's sentencing remarks that the appellant complained about the pre-sentence report when he appeared for sentence on 21 September 2000.The result was that the Judge stood the case down until the afternoon to enable another probation officer to interview the appellant in terms of assessing his suitability for periodic detention.The Judge also noted that at the morning hearing the appellant confirmed that he would comply with a sentence of periodic detention if imposed.

[35] The second pre-sentence report included the following comments:-

Mr Reihana was further interviewed in order to canvass his suitability for community-based sentence options.Community Probation Service records note that he has been assessed as unsuitable for Community Service, and further negotiation confirm that a placement is not available for Mr Reihana.

In relation to Periodic Detention, there is clearly some concern by Mr Reihana that he will be able to perform the duties required of him, especially over an eight hour time period.The court may use discretion afforded by Sections 40 (2)(d) and 40 (4), to direct that Mr Reihana remain under the custody of the Warden for a time shorter than the maximum 10 hours.Alternatively, the Warden may give permission for Mr Reihana to "split" the hours of Periodic Detention over more than one occasion per week.

[36] On the basis of that report, the Judge sentenced the appellant to periodic detention for 5 months and recorded his intention that the appellant not serve longer than a total period of 10 hours in custody in any given week which might be served on more than one occasion each week.

[37] Before us Ms Croft, for the appellant, produced a further report from the appellant's doctor which was in the following terms :-

Toni sustained a lumber [sic] spine injury in August of 1993 and has been off work on ACC since this time.He is troubled by ongoing pain which is aggravated by any duties.He is only able to work for two hours a day in sedentary activity.Toni is concerned re recent sentencing for periodic detention will jeopardise the health of his back.He feels the sedentary activities in a community service setting would be more appropriate given his current condition.

Toni has a restriction of lumber [sic] spine flexion and also extension with loss of lumber [sic] lordosis.Recent x-ray in November of 2000 also confirmed narrowing at L5-S1 disc level which is in keeping with long term low back degeneration.It is likely that Toni's symptoms are a combination of this and the back injury he had many years ago.

Hopefully this information has been useful.

[38] Ms Croft also told us that she had discussed the appellant's situation with the probation officer who interviewed the appellant when the case was stood down on 21 September last year.The probation officer has confirmed that if she is directed by this court to do so, she would re-interview the appellant as to his suitability for community service.

[39] The appellant's position as to periodic detention was initially that he was not prepared to carry out such a sentence, then, on 21 September that he was prepared to comply with such a sentence, and now, by way of appeal against a sentence of periodic detention which was imposed upon him, that he is not fit to do so.As to community service, his initial stance was that he was not prepared to comply with the sentence of community service.Now he says he is.

[40] We are reluctant to be thought to be indulging the appellant's changing views on all of this.The offence for which he was convicted was serious, particularly given the element of ringing which was involved.An offender who has been convicted of an offence and who makes it clear that he is not going to comply with community based sentences could have no cause for complaint if the sentencing Judge imposed a term of imprisonment which might not otherwise be appropriate.

[41] One option for us, in those circumstances, would be to proceed directly to the default situation of a sentence of imprisonment given that periodic detention can be seen as an alternative to prison.Obviously, the present situation has to be brought to an end, one way or another, with a sanction being imposed upon the appellant which can be carried into effect.

[42] The fact remains, however, that we are left with the view that despite what the appellant told the sentencing Judge, the sentence of periodic detentionwas not appropriate in this case.The probabilities are that the administration of such a sentence would involve disputes between Periodic Detention Centre staff and the appellant with the appellant relying on his medical condition and associated medical certificates as excuses for not complying with directions resulting, in all probability, in defended proceedings for breach of periodic detention.

[43] It is clear from what we were told by Ms Croft that the appellant has a profound interest in matters Maori.She indicated that community service focused around this interest may well be able to be served satisfactorily. Given the appellant's change of heart as to this we are prepared to entertain community service as a possible sentence.

[44] We therefore:-

1. Indicate that upon receipt of a satisfactory report from the Community Probation Service to the effect that a community service placement for the appellant can be found, in which the appellant can serve 150 hours community service,and assuming that the appellant consents to such a sentence, we are presently disposed to allow the appeal against sentence, quash the sentence of periodic detention and replace it with a sentence of 150 hours community service;

2. To this end, direct that there be a further report obtained from the Community Probation Service as to the appellant's suitability for community service.

3. Reserve further consideration of the ultimate disposition of this appeal.

[45] We will give final judgment on the appeal against sentence on the basis of the material available on 11 April2001.

Solicitors

Helen Croft, Wellington for Appellant

Crown Law Office, Wellington