H v Police HC Auckland CRI-2008-404-78 [2008] NZHC 730 (20 May 2008)

Last Updated: 31 July 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2008-404-000078}

H

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 19 May 2008

Appearances: Appellant in person

A R Longdill for Respondent

Judgment: 20 May 2008 at 12:00 noon

JUDGMENT OF COURTNEY J

_{ON APPEAL AGAINST CONVICTION}

This judgment was delivered by Justice Courtney on 20 May 2008 at 12:00 noon

pursuant to r 540(4) of the High Court Rules

Registrar / Deputy Registrar

Date.............................

Solicitors: Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – A Longdill

Copy to: I H

_email: [e-mail]

H V NZ POLICE HC AK CRI-2008-404-000078 20 May 2008

Introduction

[1] On 21 February 2008 Mr H was convicted in the District Court on three charges of, without claim of right and with intent to cause loss, wasted or caused water to be wasted. He was fined $200 on each charge and in respect of one of the charges also ordered to pay Court costs of $130. Mr H appeals against the convictions.

[2] The charges relate to events that occurred in March 2004. Mr H and the three complainants (Messrs Shaw, Gardiner and Wratt) owned adjoining properties on Great Barrier Island. All four had gravity-fed water supplies from a stream on a property belonging to another occupier, Mr Smith. Some time on 31 March 2004 the pipes to the water supply of the three complainants were cut. Mr Smith’s water supply was not affected and Mr H ’s water supply was not affected.

[3] The case in the District Court turned on circumstantial evidence which Judge Lee found established beyond reasonable doubt that it was Mr H who had cut the water pipes of the three complainants. The appeal is one by way of rehearing on the basis of the record. The approach to be taken is that recently discussed in Austin Nichols v Stichting Lodestar¹ namely that it is for me to make an assessment of the case against Mr H and to reach my own view on the merits. Whilst I may defer to the findings made by the first instance Judge, I am not bound to do so.

Did the evidence establish beyond reasonable doubt that Mr H was the offender?

[4] The main thrust of Mr H ’s appeal was that the evidence that the police relied on was insufficient for the Judge to find beyond reasonable doubt that he had committed the offences. The police case in the District Court was entirely circumstantial, with the following circumstances being relied on:

¹ [2007] NZSC 103

• Because the complainants had water in the morning and early evening of Wednesday 31 March 2004 but not later that evening the pipe must have been cut some time during that day.

• Mr H was in the area of the water pipes during Wednesday,

31 March 2004.

• Although the water pipes belonging to the complainants had been damaged neither Mr Smith’s water pipes nor Mr H ’s were damaged, although they all drew from the same pool.

• There had been longstanding and acrimonious litigation between

Mr H on the one hand and the complainants on the other.

• Mr H returned to Great Barrier Island on Saturday 3 April 2006.

As he was leaving he was spoken to by Constable Robbins who noticed that Mr H and his companion, Mr Wells, were checking in a shovel and spade. After some discussion, Mr H admitted that they were his.

• Photographs taken by Constable Robbins of the severed pipes showed that in one instance the ground beneath the pipe had been gouged and other photos showed that roots and branches of trees beneath the pipes had been severed. This indicated that the pipes had been severed by downward blows with an axe or spade rather than cut with some kind of cutter.

• The area where the pipes were located was isolated and private.

Access was difficult which meant that it was unlikely that anyone would be in the area without a specific purpose, which meant that the damage was not likely to have been random vandalism.

• Although Mr H claimed to have been in the area for the purposes of gathering evidence for the civil action by marking a trail

with Dazzle paint, there were actually three trails that corresponded with the complainants’ water pipes and that fact was inconsistent with his explanation.

[5] The Judge accepted the relevance of all these circumstances and concluded at

[15] and [16] that:

[15] In summary, it is highly unlikely that the damage to the water pipes was random vandalism. There has been no suggestion that anyone else was responsible. Secondly, the defendant was on the spot at the relevant time. Thirdly, he had the tools capable to causing [sic] the kind of damage that was caused. Fourthly, he had the motive being in a bitterly acrimonious court case with the complainant lasting several years. Fifthly, the explanation he gave for being there, spraying the trees, was not supported by the evidence in the sense that the orange marked tracks went in three trails and not the trail that was marked by white bags for the High Court Judge. Finally, it seems to me that there was too much of a coincidence that while Mr Shaw and Mr Wratt’s water line was cut Mr Smith’s and the defendant’s line was not. Mr Smith of course had the property with the stream from which they all sourced their water supply.

[16] This evidence although not strong on its own, taken together it seems to me so strongly points to the defendant that I am satisfied beyond a reasonable doubt that he was the person who did the damage. I find the three charges proved.

[6] Mr H said that there were circumstantial factors that pointed away from him being guilty and which the Judge did not give sufficient weight to:

• He did not have enough time to carry out both the marking with the Dazzle spray to gather evidence and cutting the pipes. He purchased the Dazzle spray at the shop at Great Barrier at about 10:30 am and from there had to go up to the area in question, undertake all of the spraying for the purposes of the court case and get back to the airport in time to catch the 5 pm flight. On the evidence it was likely that whoever cut the pipes had done so about 300 times so there was not enough time for him to have both trail blazed with the orange Dazzle paint as well as cut all the pipes.

• There was no evidence that he had the tools with him on Wednesday,

31 March 2004. The police took a shovel and spade from him on

3 April 2004 when they spoke to him at Claris airport. But he denied having had the tools with him on the Wednesday.

• The tools were not sharp enough to make the cuts in the pipes that were described in evidence. There was no forensic evidence as to the thickness of the pipe and the relative difficulty of severing it with a spade or a shovel. Mr H invited me to consider the matter myself by examining the bluntness of the implements and the thickness of the pipes that were exhibited but I was unable to form any view on this basis.

[7] A Judge is entitled to find that various pieces of circumstantial evidence taken together are sufficient to prove a charge beyond reasonable doubt. The Judge need not accept all of the pieces of circumstantial evidence as pointing to guilt. Nor does each piece of circumstantial evidence in itself need to be proved beyond reasonable doubt. It is the effect of the totality of the evidence that is important.

[8] It is true that there was a lot of attention paid during the hearing to the tools; who owned them, what state they were in and what they were used for. On the other hand it is clear from Constable Robbins’ cross-examination that the police were not wedded to the proposition that it was these tools that caused the cuts. The fact that Mr H may not have had the tools with him on the Wednesday or that they may not have been sharp enough to sever the pipes does not significantly detract from the force of the other evidence.

[9] The most compelling aspects of the evidence are the facts that Mr H was in the very area where the damage happened at the very time it was most likely to have happened, that only his and Mr Smith’s water supplies were unaffected and there were inconsistencies in his explanation for his purpose in being there that day. The coincidence of Mr H being present at the very time the damage was most likely to have occurred and with the inconsistencies in his explanation for being there point very strongly towards guilt. I consider that the circumstances pointing towards Mr H being the offender were sufficiently compelling that the points Mr H raised do not detract from their overall strength. Taken together, the

evidence was sufficient to prove beyond reasonable doubt that Mr H was the offender.

Did the trial proceed on the basis of the wrong charges?

[10] This point of appeal arises from the confused state of the Court file. The earliest record of the charges against Mr H are informations sworn by the three complainants on 5 April 2004. They all allege that Mr H “without claim of right and with the intent to cause harm to [complainant] wasted or diverted water” in breach of s 271 Crimes Act 1961. However, subsequent to these informations being laid documents produced by the District Court using the same CRN numbers referred to the charges against Mr H as being ones of wilful damage brought pursuant to s 11 Summary Judgments Act 1981. These documents include a charge sheet which appears to have been produced in September-October 2007. This charge sheet has noted on it “original file missing”. The other document that refers to the charges of wilful damage was a notice of bail dated 6 April 2004.

[11] There is no explanation in the evidence relating to why the charges were described subsequently by the Court as wilful damage when they were quite plainly laid originally as charges of wasting water. Ms Longdill for the respondent suggested that this was the result of the file being lost and a charge sheet being produced by the Court for administrative purposes.

[12] The charges in the original informations were clearly brought under s 271

Crimes Act 1961 and the subsequent production by the Court of documents for administrative purposes could not alter that. To the extent that Mr H ’s appeal rests on this point it must fail.

[13] That, however, was not the end of the matter because on 9 October 2007 three fresh informations were sworn alleging that on 31 March 2004 Mr H did “without claim of right and with intent to cause loss to [complainant] wastes or causes water to be wasted”. The reason that these three informations were laid was explained by the prosecutor and recorded in the notes of evidence. The explanation was that the first informations alleged “with intent to cause harm” and the second set alleged “with intent to cause loss”. The police prosecutor explained that there was

some confusion as to the exact elements of the charge and sought to proceed on the basis of the three later informations and have the others set aside. The prosecutor explained that the focus of the prosecution was on loss rather than physical harm. At the Court’s suggestion the prosecutor then sought to withdraw the three earlier prosecutions which, after a discussion about possible limitation issues, was done.

[14] Mr H was able to consult his barrister about that development and with the benefit of his advice did not object to the amendment. I note that at the trial the focus of Mr H ’s defence was the denial that he had been responsible for damaging the water pipes. This defence would not have been affected by the changes to the wording of the charges.

[15] There could be no objection to that course. The charges were ones brought under the Crimes Act 1961 and accordingly subject only to the limitation that the prosecution was to be commenced within ten years of the offence and the prosecution was entitled to withdraw the earlier informations and replace them with

fresh ones².

Conclusion

[16] I am satisfied that the totality of the evidence against Mr H , although in some respects inconclusive, was sufficient overall to prove, beyond reasonable doubt that Mr H was the offender.

[17] There is no substance to the complaint regarding the reference on some court documents to the charge of wilful damage nor to the withdrawal and laying of fresh informations that slightly amended the wording of the charge.

_{[18] The appeal is dismissed.}

_{P Courtney J}

² Blakemore v Waitakere District Council[2003] NZCA 325; [2004] NZAR 115 (CA)