THE QUEEN v GRANT THOMAS LETHBORG [2002] NZCA 194 (8 August 2002)

IN THE court of appeal of new zealand

ca78/02

THE QUEEN

V

GRANT THOMAS LETHBORG

Hearing:	1 August 2002
Coram:	Gault P Ellis J Paterson J
Appearances:	G King for the Appellant B J Horsley for the Crown
Judgment:	8 August 2002

judgment of the court DELIVERED BY PATERSON J

Introduction

[1] Mr Lethborg was charged with receiving a ride-on lawnmower knowing at the time of receipt that it had been stolen or dishonestly obtained.At his first trial, the jury failed to agree.At a second trial he was found guilty and convicted.He now appeals against the conviction.

Ground of appeal

[2] There are two grounds of appeal:

(a) The Judge erred in allowing the evidence given at the first trial by a witness who was too ill to attend the second trial, to be read at the later trial;and

(b) The verdict of the jury was unreasonable or cannot be supported having regard to the evidence.

Background

[3] The stolen mower belonged to a business known as Victoria Gardens operated by Mark Turkilsen.It was stolen from premises occupied by Mark.His father, Michael Turkilsen, assisted in the business and was the person who purchased the mower for use in the business.

[4] The mower was stolen in September 1999.In January 2000, Mr Lethborg sold a mower to a third person.In July 2000, the police recovered the mower from the third person.The police alleged the mower sold by Mr Lethborg was the mower stolen from Mark's property.

[5] Michael viewed the mower at the Taumarunui police station in October 2000. He identified it as the stolen mower.A vital issue at the trial was whether the mower which Mr Lethborg had sold was the mower stolen from Mark's property.

[6] At the second trial in February 2002, Mark was shown photographs of the mower sold by Mr Lethborg and his evidence was that it was the one stolen from his property.He referred to particular features of the mower which identified it.

[7] Mr Lethborg's defence was twofold.First, the jury could not be sure that the mower sold by Mr Lethborg was the stolen mower.Secondly, the jury could not be satisfied to the required standard that if the mower was the stolen one, Mr Lethborg knew that it had been stolen.

[8] At the second hearing, the Crown applied to read the evidence of Michael given at the first hearing.In his ruling giving leave to read this evidence, the Judge noted that Michael was unable to give evidence and it was "acknowledged that he is unwell, he having suffered several heart incidents in recent times.In whatever way this application is disposed of, Michael Turkilsen will not be giving vive voce evidence."

The reading of the evidence

[9] In his ruling allowing the evidence to be read, the Judge noted that identification of the mower was a central issue.The ruling notes that Mr Lethborg's counsel suggested that the evidence given at the previous trial would show inconsistencies with the evidence given by Mark in this trial.It was submitted it would be unfair for Michael's previous evidence to be read if it could not be tested by cross-examination.The Judge noted the matter was ultimately one for his discretion and that while he could make the appropriate order, he should not do so if there were prejudice and unfairness to the accused.He could not see that there was any prejudice and unfairness and granted leave accordingly.In doing so, he noted that s 184 of the Summary Proceedings Act 1957 actually referred to deposition evidence rather than previous trial evidence, and he gave Mr Lethborg's counsel the option of having either the deposition evidence or the previous trial evidence, together with the cross-examination, read.Counsel opted for the latter.

[10] Counsel for Mr Lethborg submitted on appeal that trial counsel was prejudiced by the late application to adduce Michael's evidence in this form. The absence of advance notice meant that counsel was unable to properly prepare for the argument on the admission of the evidence, including a consideration of the Court's jurisdiction for making such a ruling.It was also submitted that s 184 of the Summary Proceedings Act 1957, which was referred to in the ruling, had no application to evidence given at a previous trial.Further, the inability to cross-examine Michael was prejudicial. Finally, it was noted that at the first trial it was not put to Michael that he was mistaken as to the identification of the lawn mower.

[11] The Crown submitted that the Judge correctly assessed whether there would be any prejudice to Mr Lethborg by admitting the statement of Michael.It was sworn testimony from an earlier trial.The Judge properly addressed the question of prejudice in accordance with the provisions of s 8 of the Evidence Amendment Act (No.2) 1980, and concluded that there would not be any prejudice or unfairness to Mr Lethborg.Michael's evidence was probative as he was the person who purchased the mower, gave evidence of the actual purchase price and provided supplementary evidence of identification.The primary evidence of identification was given by Mark.

[12] The Crown also submitted the Judge correctly cautioned the jury on the use of the evidence.Before the evidence was read, the Judge advised the jury what was about to happen and the reason for it.He then said:

"Whenever evidence is read to you there is a real disadvantage, because you do not have the opportunity of seeing the witness give evidence and so you don't get a firsthand impression of the witness.Secondly, there is another disadvantage, in that Mr Talbot doesn't have the opportunity to cross-examine, although, as you will hear, on the earlier occasion the witness was cross-examined.Those disadvantages mean that you should treat the evidence with care because it inherently has those disadvantages to it, but, nonetheless, it is evidence that you are entitled to hear and will hear.I will talk a little more about that at the end of the case, but wherever there is a space for any doubt that is also to be accorded to the accused."

The Judge did not specifically address this matter in his summing up.

[13] Michael's evidence, which was read, was that he had no doubt that the mower was the stolen one.In his words, there was an accumulation of little things that left him in no doubt.He referred to the right hand back wheel hubcap being missing and knew it was missing because he broke it.The left front tyre was flat and before the mower was stolen he had to pump that tyre up each week.The switchboard under the bonnet was frosted and cracked as it had been when he bought the mower, such condition having been caused by an electrical fault.Further, it had a distinct towbar which had been manufactured precisely for the job it was used for.Then, there were four little wheels bolted on to the mower housing which Michael had moved when he purchased the mower.They were in the position to which he had moved them.He noted the maker's labels had been taken off.

[14] In cross-examination at the previous trial, it was suggested to Michael that there had been quite a long period between the loss of the mower and its recovery, and he was cross-examined with a view to establishing that he might not be able to identify the mower.He was not asked specifically whether he was mistaken but the purpose of the cross-examination was to show he may have been mistaken.

[15] Mark, in his evidence, had also referred to many of the features referred to by his father.Michael's evidence corroborated Mark's evidence and in our view was very strong evidence which established the mower sold by Mr Lethborg was the mower stolen from Mark's property.Indeed, on the question of identification, the evidence given by Mark was strong and compelling.It may have in itself been sufficient without the evidence of Michael.

[16] While the Crown may have been in a position to have made the application before the trial began, the late application, if that is what it was, should not have prejudiced counsel.Trial counsel should, and commonly do, meet and argue evidential applications during trials.

[17] There is nothing in the technical submission that s 184 of the Summary Proceedings Act had no application.The evidence of Michael at the previous hearing was admissible under s 3 of the Evidence Amendment (No.2) Act 1980 unless "the prejudicial effect of the ... statement would outweigh its probative value, or if, for any other reason, the Court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement." (s18 Evidence Amendment (No.2) Act 1980).Michael's evidence was clearly probative.It confirmed the identification evidence given by Mark.We are not persuaded of any illegitimate prejudice which would outweigh its probative value.In the circumstances we see no reason for taking a different view from the Judge on the exercise of his discretion.At the time the evidence was given, he gave a clear warning to the jury.While it would have been preferable to have repeated that warning in his summing up, we are not persuaded that a miscarriage of justice arose from the admission of this evidence.

Verdict cannot be supported

[18] It was submitted on behalf of Mr Lethborg that the evidence did not establish beyond reasonable doubt that Mr Lethborg knew that the mower had been stolen and, indeed, there was evidence that he had bought it.Further, it was not proved beyond reasonable doubt that the mower Mr Lethborg sold was the one stolen from Mr Turkilsen.We have already expressed our views on the identification issue and there is nothing in this point.

[19] The Crown's position is that the jury's verdict was reasonable and entirely supported by the evidence.Apart from the identification of the mower, there was evidence that the mower was stolen, a statement from Mr Lethborg that he traded a horse worth $500 and $350 in cash for a mower which was on-sold for $1500, Mr Lethborg's statement to the police was evasive about from whom he purchased the mower, and he refused to comment or give an explanation about apparent anomalies with the receipt.The statement demonstrated a degree of dishonesty in a situation where the appellant might naturally be expected to give an explanation if he were innocent.Finally, there was Mr Lethborg's response to another witness when he heard the police had taken the mower from the person he sold it to.

[20] Mr Lethborg did not give evidence at the trial but did give a statement to the police when he was interviewed.In that statement he said he got the mower from an associate of an associate and gave him a receipt for it.He was not prepared to mention names of the associates, was not prepared to comment when asked to give a description of the person who purportedly sold the mower to him, and was generally evasive.An uncle of the person who purchased the mower from Mr Lethborg and who was aware of that transaction, also gave evidence.He told Mr Lethborg the police had taken the mower from the third person.His evidence was that Mr Lethborg seemed surprised and said "Oh, Jesus Christ, I am fucked now ... they have got me now...".Mr Lethborg then banged his head on the trailer and banged it on the concrete and on the chimney.

[21] When Mr Lethborg's own statement and his unsatisfactory comments on the purchase by him of the mower are considered, together with the evidence of theft and identification, we are of the view that there was sufficient evidence upon which a jury, properly instructed, could bring in a verdict of guilty.

Result

[22] The appeal against conviction is dismissed.

Solicitors

Crown Solicitor, Wellington