THE QUEEN v TARAS NATHANIEL HAZAEL WRIGHT [2003] NZCA 22 (25 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA369/02

CA61/03

THE QUEEN

V

TARAS NATHANIEL HAZAEL WRIGHT

GEORGE EDWARD WRIGHT

Hearing:

18 February 2003

Coram:

Glazebrook J

Hammond J

Gendall J

Appearances:

P E Dacre for Appellants

F E Guy for Respondent

Judgment:

25 February 2003

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]	Mr Taras Wright appeals against conviction on three charges of conspiracy. He also filed an appeal against sentence but is granted leave to abandon that appeal.
[2]	Mr George Wright is the father of Mr Taras Wright.He was charged with the same charges of conspiracy as his son but was convicted on the third charge only.He appeals against that conviction.
[3]	The charges were as follows.The first was that they conspired with others to receive various Subaru vehicles, knowing they had been stolen or dishonestly obtained.The second was that they conspired with others, with intent to defraud, to obtain documents, namely vehicle identification plates, applications for registration of a motor vehicle forms and warrants of fitness, capable of being used to obtain a pecuniary advantage.The final charge was that they conspired with others to use or deal with forged Japanese deregistration documents (knowing they were forged) as if they were genuine by presenting them to an approved vehicle compliance certifier.
[4]	Mr George and Mr Taras Wright ran a business called Access Sub Spares, a mechanical workshop in Penrose.It was in the course of this business that the offences were alleged to have occurred.The business was involved almost exclusively with Subaru motor vehicles.Damaged vehicles and spare parts were imported from Japan and also obtained in New Zealand.The vehicles were repaired and/or re-shelled and sold.There was also a separate spare parts business.Mr Taras Wright purchased vehicles and spare parts in Japan for Access Sub Spares and, when he was in New Zealand, worked as a mechanic in the business.Mr George Wright, who was nearing retirement, performed mainly office functions and odd jobs.
[5]	There were two other alleged co-conspirators involved in the business:Mr Mayne, a mechanic, who was tried and convicted of all three charges at the same time as the appellants and Mr Coubray, who ran the spare parts department and the office and who had earlier pleaded guilty to a number of charges relating to the events at issue.Mr Coubray gave evidence for the Crown at the trial of the other alleged conspirators.The defence position at trial for the appellants was that, although there had been fraud, the fraud was that of Mr Coubray and they had not been involved.

Submissions of Mr Dacre

[6]	Mr Dacre says that the following factors potentially prejudiced and tainted the jury to such an extent that there was a miscarriage of justice:
(a)	the Crown fundamentally changed the basis on which it presented its case from its opening to its closing with respect to the issue of whether some of the cars imported by Mr Taras Wright from Japan were test cars or not;and
(b)	in its closing it invited the jury to draw inferences in relation to two vehicles which the Police should have known were contrary to the true facts surrounding those vehicles.This relates to Mr Taras Wright only.
[7]	The Crown opened the case on the basis that the appellants were importing and selling factory test cars and that tests which had been conducted included exposure to seawater and extremes of temperatures.To ensure that test vehicles were not registered the manufacturer cut the chassis number from the firewall.This is one of the forms of identification inserted by the factory.The other is a silver tag with the chassis number and other information riveted to the bodywork under the bonnet.It is common ground that Mr Taras Wright purchased from a wrecker in Japan six vehicles which had had the chassis number cut out of the firewall but retained the silver tag.The Crown alleged that the appellants knew the cars were never intended by the manufacturer to be used on the road and that they would not be able to be registered in New Zealand.
[8]	There are two ways of registering vehicles brought from Japan in New Zealand that are relevant for present purposes.One is to have a deregistration certificate (and it is common ground the cars in question did not).Another is to have a manufacturer’s certificate that the vehicle is built to an acceptable standard, a certificate that would not be forthcoming for a test car such as was described in the Crown opening.
[9]	At trial Mr Robinson of Subaru New Zealand was called.He produced certain e-mail documentation which indicated that four of the vehicles concerned had been damaged and two were ‘prototypes’.He could not expand on what a prototype was.He did not produce the original documentation relating to the production of the vehicles concerned.In Mr Dacre’s submission this meant that the Crown opening in relation to test cars was unjustified as the evidence did not support it.To make matters worse, in Mr Dacre’s submission, at sentencing the Crown position was that, once chassis numbers had been removed from the firewall, the vehicles no longer existed and that they could never have a true identity.This is because the silver tag with the chassis number was removable.
[10]	If the Crown was unable to prove the identity of the vehicles, the appropriate course in Mr Dacre’s submission would have been not to refer to test cars at all.The Crown case should have simply been that these cars were not legitimately registered in New Zealand and that the identity of the vehicles was unknown.Mr Dacre submits that the “test car” issue was time consuming, confusing, ultimately irrelevant and highly prejudicial.
[11]	With regard to the alleged misleading Crown closing in respect of the two vehicles, Mr Dacre submits that this is important, even though he accepts that he was able in his address to correct the position as set out by the Crown and that this was mentioned in the summing up.It is important, he says, because the evidence in respect of these two vehicles constituted two of the few pieces of evidence against Mr Taras Wright that were not connected to Mr Coubray’s testimony and was evidence that was directly relevant to the charge of conspiracy to receive stolen vehicles and parts.
[12]	The two vehicles involved were termed Car J and Car 1V.Car J was a vehicle located by the Police at the address of Mr Taras Wright.A Mr Thompson pleaded guilty to receiving the vehicle.Mr Thompson made a statement to the Police admitting receiving the vehicle and stating that the vehicle was being stored at Mr Wright’s property and was to be uplifted by Mr Thompson some time later.Mr Dacre submits that the Police must have accepted Mr Thompson’s version of events as it was on that basis that Mr Thompson pleaded guilty to the charge against him.Thus the prosecution should have not asked the jury to draw the conclusion that Mr Taras Wright had received the vehicle for illegal purposes.
[13]	Car 1V was located several months after the initial arrest.Mr Taras Wright had installed into it a stolen engine from a car termed Car S.The police had at the time of the initial arrest executed a search warrant at the premises.The police subsequently checked the serial numbers and seized the engines which were recorded as being stolen.Although the Car S engine was stolen the police in error did not seize that engine as the detective taking down the details of the engines at the premises incorrectly recorded the serial numbers located.
[14]	The Crown closed on the basis that the finding of the stolen engine in a different vehicle months after the initial arrest was a blatant example of the accused knowingly offending after his arrest but Crown counsel was unaware that the Police had failed to identify the engine from Car S as being stolen and that they had therefore left it behind at Access Sub Spares.In Mr Dacre’s submission Mr Taras Wright would have been entitled to assume the engine was not a stolen engine.

Crown submissions

[15]	Ms Guy for the Crown concedes that in the Crown opening test vehicles were referred to.She says, however, that the test vehicle issue was only ever part of the Crown case.In addition to the test cars it was the Crown case that some of the cars were wrecks that had been imported into New Zealand but then given an identity of a stolen car.Such cars could not be registered in New Zealand as they did not have deregistration papers from Japan and the chassis number had been removed from the firewall.Consequently these cars were still of relevance to the charges whatever label was attached to them.
[16]	She also concedes that the evidence of Mr Robinson at trial was that four of the cars were not test vehicles but that three were scrapped after being damaged during manufacture or transit.Two of the vehicles were described as ‘propotype’ vehicles and Mr Robinson was subject to rigorous cross-examination by defence counsel about the documents from Japan he was relying on and the fact that no details of the testing that the vehicles had undergone were available.
[17]	In the Crown’s submission because of the manner in which the issue of the test cars was handled it cannot be said that any miscarriage of justice arose.By the time the jury went to deliberate it would have been clear to them from the evidence of Mr Robinson that only two of the six vehicles at issue could have been test vehicles.In its closing the Crown accepted that it had not produced evidence that four of the six cars originally named as “test cars” were in fact “test cars”.This was also set out by the judge in his summing up.
[18]	In any event the evidence as to the test cars would have come up in the trial through Mr Coubray who testified that Mr Taras Wright had knowingly purchased test cars in Japan.It was further submitted that the jury’s acquittal of Mr George Wright on the first two counts reflects the fact that they were not adversely influenced by the Crown opening in relation to “test cars” but had carefully considered the evidence.
[19]	In relation to the alleged misleading closing in relation to Car J and Car 1V the Crown submission is that it was open to the prosecution to make the submissions it did.Car J was found at Mr Taras Wright’s house.He explained to the officer in charge of the case that a mate had dropped it off and it was waiting for registration.Daniel Thompson in his video interview had described where he had parked the car at the rear of the house.The car was, however, located by the police in a different position to that described by Mr Thompson.Clearly the car had been moved and it was an inference open to the jury that it had been moved by the owner of the house, Mr Taras Wright.The ignition barrel had been removed and a screwdriver was necessary to start the vehicle.In addition the car had no registration plates, the ignition barrel was on the floor of the car and the stereo had been ripped out of the centre console with leads hanging.The Crown submits that, particularly for someone who was in the motor vehicle industry such as Mr Taras Wright, it would have been obvious that the car was stolen.
[20]	It was the police position that this was another vehicle which was to be “updated” by way of having its stolen identity removed and replaced by the identity of a wreck.There was evidence from other witnesses that vehicles had been stored at Taras Wright’s house and then brought to the workshop for “updating”.It was accordingly not misleading to invite the jury to draw the conclusion that Taras Wright had received this vehicle for illegal purposes.
[21]	Moving to Car 1V the Crown submits that it was open to the Crown to make this submission also.Commencing from the starting point that Wright knew all along that the engine was stolen (which was an inference open to the jury) the evidence that he subsequently placed that engine into another vehicle after the search of the premises had taken place was evidence of a continuing illegal activity by Wright.

Discussion

[22]

We note that Mr Dacre accepts that there was sufficient evidence for the jury to conclude that the charges were proved whether or not it was proved the cars were or were not test vehicles (and in particular if they accepted Mr Coubray’s evidence).He also takes no issue with the judge’s summing up.The concern he expresses is the fact that the “test car” issue was before the jury when there was no justification for it.This created a residual unfairness leading to a possible miscarriage of justice.

[23]

In our view the jury could have been in no doubt that four of the cars were not test cars in the sense set out in the Crown opening.They would have heard Mr Robinson’s evidence that two of the cars were ‘prototypes’ but they would also have heard that he could not elaborate on exactly what that meant.The change in the Crown case was referred to by both the Crown and the defence in closing and by the judge in his summing up.The Judge said:

“The next category of cars was the category of test cars and everyone has now taken to at least figuratively using inverted commas around that expression, but we will call them test cars for convenience.Test cars were car E found in the yard with a speedometer reading of nine kilometres, chassis number welded back into the vehicle.Cars G, Y 1B, 1C and 1L are cars in that category, says the Crown.Car L was damaged apparently, written off as scrap, sold to Dennis McKenzie.The number was taken from the chassis plate and stamped onto the metal which was welded into the gap in the firewall.That was one of the test cars, as I say, used, in the broad sense of the word.”

[24]	His Honour also recorded in relation to the appellants’ case (and Mr Dacre accepts that this is an accurate summary of the point he made):

“It turns out that the vehicles, according to Mr Robinson, were perhaps prototype vehicles or vehicles that had been scrapped for some other reason, and were not the type of vehicle that the Crown believed they were at the opening, and the fault for that lies fairly and squarely with Mr Robinson, submits Mr Dacre.”

[25]	The jury was also given the standard direction not to allow sympathy or prejudice to interfere with their task.While the judge’s direction on prejudice could ideally have been tailored to refer specifically to the test car issue we do not consider the jury was improperly influenced by any prejudice arising out of the Crown opening.
[26]	We accept the Crown submission that the jury could not, in the light of Mr Robinson's evidence, the closing submissions and the judge’s summing up, be in any doubt that four of the vehicles could not be described as test vehicles.We also consider that the jury would have been in no doubt that the Crown opening in respect of test vehicles could not likely even be justified in respect of two vehicles described as ‘prototypes’, given the doubts as to the exact meaning of the term ‘prototypes’.There was ample evidence to support the conviction of the appellants, whether the cars were test cars or not.The essence to counts 2 and 3 was that the appellants’ conspiracy to obtain and to use forged documents to enable registration of the Japanese vehicles (whether test cars or not), and other documents (plates, registration forms, warrants of fitness), was aimed at disguising stolen cars and cars not registered in New Zealand.We also agree with the Crown submission that Mr George Wright’s acquittal on the first two charges would tend to suggest that the jury evaluated the evidence in an appropriate manner.It follows that this ground of appeal fails.
[27]	With regard to Cars J and 1V we consider that there was evidence to justify the submission being made for the reasons advanced by the Crown.In addition, Mr Dacre was also able in closing to put the whole situation before the jury and the matters were referred to in the summing up.There is no risk of miscarriage of justice in these points, whether singly or in combination with the test cars issue.

Result

[28]	The appeals are dismissed.
[29]	Mr Taras Wright was sentenced on 30 October 2002 to a term of two and a half years imprisonment on each charge.He has been on bail pending appeal but will now need to serve his term of imprisonment.We order him to surrender himself to the Auckland Central Police Station on or before 2.00 p.m. on Wednesday 26 February 2003.

Solicitors:

Crown Law Office, Wellington