Mahanga v Police [2021] NZCA 95 (29 March 2021)

Last Updated: 14 April 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA615/2020 [2021] NZCA 95

	BETWEEN	LEVI MAHANGA Applicant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	16 March 2021
Court:	French, Ellis and Muir JJ
Counsel:	B N Ayrey and R T Nye-Wood for Applicant M N Zarifeh and J H Whitcombe for Respondent
Judgment:	29 March 2021 at 9 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

• [1] Mr Mahanga was convicted in the District Court on one charge of receiving property valued at over $1000.00. He had been found guilty following a judge alone trial before Judge M Callaghan.^[1] A subsequent appeal to the High Court was dismissed by Osborne J.^[2]
• [2] Dissatisfied with that outcome, Mr Mahanga now seeks to appeal his conviction to this Court. Because it would be a second appeal, leave must first be obtained.^[3]

Background

• [3] The property in question was a moped. The complainant had purchased it second-hand in January 2019 for $1,300. His uncontested evidence was that when he bought the moped, it was in brand new or near brand new condition.
• [4] The moped was stolen from the complainant’s driveway sometime between 6 pm 11 October 2019 when he parked it on the driveway and 10 am on 12 October 2019 when he discovered it was missing.
• [5] The last time the complainant had seen his moped there was, he said, nothing wrong with it — it was in perfect condition. It had only been driven for relatively short distances in the greater Christchurch region. There had been no mechanical issues. It had no scratches or dents and the seating was good.
• [6] The complainant further testified that a brand new moped would cost between $2,500 and $2,600 and so having regard to its condition, the price he had paid for it nine months earlier was a very good bargain. He considered it was still worth $1,300 at the time it was stolen.
• [7] On 14 October 2019, police saw Mr Mahanga riding the moped. When interviewed, he stated that he had purchased it three weeks ago for $50 from a person whose name he would not disclose other than to say it was a friend called James. Mr Mahanga further stated that he had been spending the past three weeks fixing it up because it had been stripped down and had no engine. All he had obtained was the frame and the wheels.
• [8] When it was put to him that the moped had only been stolen two days ago, Mr Mahanga admitted he had not obtained it three weeks ago but continued to maintain that it had been stripped down when he got it. He denied stealing it.
• [9] A police photo taken of the moped after its recovery showed it to be in dilapidated state. It had an engine, wheels and a steering column but no seats and no other surrounds apart from the front mudguard.
• [10] After being contacted by police, the complainant went to retrieve his moped. He considered it was no longer usable and signed it over to a towing company.
• [11] At trial, Mr Mahanga did not give evidence.
• [12] In convicting him of receiving the moped, the District Court Judge found that when the moped was stolen, its value was the value attributed to it by the complainant — that is, $1,300. The Judge based that finding on the age of the moped, its relatively low mileage, the evidence of the cost of a new moped and the complainant’s evidence regarding its condition.^[4]
• [13] Having made that finding, the Judge then went on to reject the claims made by Mr Mahanga about the condition of the moped and hence its value at the time he obtained it. In particular, the Judge rejected Mr Mahanga’s claims that he had received it in a delipidated state. The Judge also found that it was Mr Mahanga who had changed the status of the vehicle by removing the items so it would not be identifiable.^[5]
• [14] Finally, the Judge said he was satisfied that at the time Mr Mahanga received it, he knew it was stolen or dishonestly obtained or was reckless as to whether that was the case.^[6]
• [15] Those findings were upheld on appeal by the High Court.^[7]

The application for leave

• [16] In order to obtain leave to appeal to this Court, Mr Mahanga must satisfy us of one of two things: either that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[8]
• [17] The focus of the proposed appeal is that there was insufficient evidence to prove beyond reasonable doubt that at the time the moped was received by Mr Mahanga its value exceeded $1000.
• [18] There are two aspects to that central contention. The first is that the Judge should not have relied on the complainant’s evidence of value when the complainant was not a valuation expert. That aspect is said to raise a question of general or public importance, namely whether non-expert opinion evidence regarding value is sufficient.
• [19] The second aspect is that on the evidence there was a reasonable possibility that it was the thief who had stripped the moped before selling it to Mr Mahanga. That fact combined with the absence of expert valuation opinion along with the fact that the High Court proceeded on a mistaken basis about the date of receiving has created a real risk of a miscarriage of justice.

Analysis

• [20] We acknowledge that the prosecution was required to prove beyond reasonable doubt that the value of the moped exceeded the statutory threshold of $1,000.^[9] That is to say, value was an element of the offence.
• [21] We also acknowledge that the High Court Judge wrongly stated that the District Court Judge had found Mr Mahanga had received the moped on the same day it was stolen.^[10] The correct position is that the District Court Judge did not make any finding as to the precise date on which that happened. There was a two-day window between theft and arrest and no evidence about exactly when during those two days the moped was received.^[11]
• [22] However, as will become apparent on our analysis of the evidence that error was not material. Nor are we persuaded that the threshold for granting leave has been met.
• [23] This Court has recently held in Pure v Police that determining whether a value threshold has been met should not be a time consuming or expensive task.^[12] To suggest that in every case, expert opinion evidence must be adduced would obviously be contrary to that approach as well as contrary to common sense. It is also not practical or realistic to suggest that through the vehicle of this case, the Court could or should attempt to formulate guidelines as to when expert evidence will be required and when it will not. The sufficiency of evidence must of necessity in every case depend on the particular facts of the case. In short, there is no question of general importance.
• [24] As to the facts of this particular case, we are satisfied the Judge was entitled to rely on the evidence of the complainant to support his finding about value at the time of theft and not to make any deduction for depreciation.
• [25] As for the value of the moped at the time of the receiving, there was no direct evidence of its condition at that time. However, there was in our view sufficient evidence for the District Court Judge to be entitled to draw the inference that he did.
• [26] In particular we point to the fact that two days was an implausible time frame for both the thief to have stripped down the moped, look for and find a purchaser and for Mr Mahanga to have sourced a new motor and do the other work he claimed to have done.
• [27] Further, the incentive for the thief was to achieve the best price possible. He or she did not have the same interest as Mr Mahanga did in stripping it down.
• [28] Added to this are the demonstrable lies Mr Mahanga told the police. And in particular the lie that he had had the moped in his possession for three weeks. By far the most likely explanation for telling that lie was to support a false claim about the condition it had been in when he received it. In our view, that was an irresistible inference.
• [29] It follows that we do not consider that there is a risk of a miscarriage of justice.
• [30] The application for leave to bring a second appeal is accordingly declined.

Solicitors:
Public Defence Service, Hamilton for Applicant
Crown Solicitor, Christchurch for Respondent

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^[1] Police v Mahanga [2020] NZDC 13350 [District Court judgment].

^[2] Mahanga v Police [2020] NZHC 2532 [High Court judgment].

^[3] Criminal Procedure Act 2011, s 237(1).

^[4] District Court judgment, above n 1, at [26].

^[5] At [31].

^[6] At [35].

^[7] High Court judgment, above n 2, at [20]—[28].

^[8] Criminal Procedure Act, s 237(2).

^[9] Any lingering uncertainty that may have been created by the conflicting decisions of Marino v Police [2017] NZCA 594, R v Koura [1996] 2 NZLR 9 (CA) and Cullen v R [2012] NZCA 413 has been laid to rest by the recent decision of Hunter v R [2021] NZCA 75 at [26], n 25.

^[10] High Court judgment, above 2, at [21].

^[11] See District Court judgment, above n 1, at [24].

^[12] Pure v Police [2020] NZCA 525 at [26].