N v Police HC Christchurch CRI-2008-409-210 [2009] NZHC 119 (12 February 2009)

Last Updated: 26 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI-2008-409-000210}

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 12 February 2009

Counsel: A J Bailey for Appellant

B Hawes for Respondent

Judgment: 12 February 2009

_{ORAL JUDGMENT OF PANCKHURST J}

[1] This appeal against conviction involves a single point. The appellant was found guilty in the District Court of receiving a valuable mountain bike. Counsel submits that on the authority of the case of R v Cruden [2007] NZCA 537 the Judge could not be satisfied beyond reasonable doubt that the appellant received the bike as opposed to stealing it and that, therefore, it not being established which was the appropriate charge, there was no option but to acquit him. In order to appreciate this submission it is necessary to place matters in context by outlining both the circumstances of the offence and by making reference to the hearing in the District

_Court.

N V NEW ZEALAND POLICE HC CHCH CRI-2008-409-000210 12 February 2009

[2] The appellant was charged with receiving a Ventana mountain bike valued at about $7,000. The owner of the bike, a Mr Brown, gave evidence that the componentry had been brought into New Zealand essentially from California. The parts were of very considerable value. The bike was then assembled and used by him until it was stolen from a roof rack on his car outside his workplace in Madras Street. This occurred despite the fact that the bike was secured to the roof rack. This was on 16 August last, being a date which was mentioned in the information charging receiving.

[3] On 12 September the appellant went to the business premises of Cash Converters. There he dealt with a Mr McConnochie. This witness noticed that the appellant came into the premises in bare feet. That impressed the witness as strange since the mountain bike was fitted with pedals bearing cleats, meaning that in order to ride it one required proper mountain bike or cycling shoes. Seemingly the appellant did not possess these. Indeed he had no footwear at all. This alerted Mr McConnochie to the fact that the bike might not be in the possession and control of its rightful owner.

[4] There was then a discussion from which Mr McConnochie understood that the appellant was saying he had acquired the bike for $1,200. This was in response to a question, what did he want for it? Mr McConnochie, of course, appreciated that this was a low figure for a bike of this description. He indicated his intention to telephone the police and establish whether the serial number for the bike was held on their records of stolen bikes. This excited some agitation on the appellant’s part. He made comments to the effect that he was short of time and he made as if to leave the premises taking the bike with him. However, Mr McConnochie insisted that he not do this and in the event the appellant remained.

[5] In due course Constable Scott arrived at the premises. Before doing so he had received confirmation from other police officers that the bike was indeed stolen, that is that the serial number provided matched that for Mr Brown’s stolen bike. Accordingly the constable questioned the appellant. Initially Mr N said that he had bought the bike approximately a week ago. He said that this was from somebody named Aaron. Asked what the last name was, he said it was possibly

Garvinski. This name was only extracted after a discussion of some minutes. Further questioned concerning Mr Garvinski, he gave details that he was about 25 years of age, lived in a flat possibly in Hereford Street, and that he had sold the bike to the appellant for $1,500 of which only $800 had been paid to date. In the course of the questioning the explanation was changed to the extent that the appellant said he had actually been in possession of the bike for about a month. He said that he had been introduced to Aaron Garvinski through another person named Bob. No details were supplied for Bob, although three possible street addresses were supplied.

[6] Finally, the appellant said that one of the two men had moved to Australia which prompted the question, how was he to pay the balance? The response was that he had account details, but further questioning resulted in only vague responses about this aspect.

[7] In light of this evidence the Judge found that the charge of receiving was established to the required standard. At paragraph [14] she said this:

The issue accordingly is whether the defendant in fact came into possession of this bike by way of stealing it or receiving it from another person. There is no issue, as indicated, that the bike was stolen in the circumstances outlined by the complainant.

Then, after reference to the evidence concerning events at Cash Converters and concerning the interview conducted by Constable Scott, the Judge said by way of conclusion at para [17]:

I reject as totally lacking in credibility the defendant’s explanation as to how he came into possession of the bike. I am satisfied that he did come into possession of the bike in circumstances that were suspicious. I find that he appreciated the risk inherent in coming into possession of this type of bike. He took possession of the bike on that basis and he was accordingly reckless as to the source of the bike and as to whether it was stolen or not. I am accordingly satisfied beyond reasonable doubt that the charge of receiving the bike by him has been made out and I find the charge proved.

[8] It is to be noted that the Judge was technically incorrect in referring to the issue being whether the bike was stolen or received by the appellant, at least if one has regard to the alternative charges that were before her. Mr Hawes has pointed out that the alternative charge was not one of theft, but rather of unlawfully taking the

bike on 12 September. That, of course, was the date of the appellant’s apprehension, not the date when the bike was in fact stolen or unlawfully taken.

[9] However, in the event, I do not think that anything turns on the point. I agree with Mr Hawes that an unlawful taking charge, particularly one directed to 12

September, was entirely inappropriate. The true alternatives in the circumstances of this case were theft or receiving, but I think it makes little difference, given the conclusion that the Judge reached. In assessing Mr Bailey’s argument in support of the appeal, I accept it is more appropriate to view theft as the proper alternative charge.

[10] Cruden was decided in December 2007. The Court of Appeal said this at para [12]:

Where there are true alternative charges of this nature [theft or receiving], a New Zealand jury must acquit on both charges unless one or the other can be proved beyond reasonable doubt to the exclusion of the other ... following the approach of the Privy Council in Attorney-General of Hong Kong v Yip Kai-foon [1987] UKPC 4; [1988] AC 642. It is not sufficient in New Zealand for a conviction if a jury is satisfied beyond reasonable doubt that one of the two offences has been committed without being able to be sure which. This contrasts with the pragmatic approach taken by the majority in the High Court of Australia in Gilson v R [1991] HCA 24; (1991) 172 CLR 353. The High Court held that, in such a situation, the accused could be convicted on the lesser charge.

[11] Mr Bailey, in effect, contended that this is exactly what had occurred in the present case. He argued that on the evidence as a whole it was not possible to be sure that the appellant was the receiver and not the thief. In his submission the Judge had effectively preferred the lesser charge of receiving and, hence, had run foul of the requirement articulated in Cruden that it must be shown one of the alternative offences is established beyond reasonable doubt, and to the exclusion of the other.

[12] Mr Hawes, on the other hand, contended that on the facts of this case it was not only open to the Judge, but that she had correctly found this to be a case of receiving. He submitted that Cruden was distinguishable on two grounds, the first being that Cruden was very much a case of recent possession. Tourists to New Zealand had gone to the theatre. They had left a considerable sum of cash in US dollars in their hotel room. They were gone from early evening until about

11.30 pm. Within that timeframe, at about 10 pm, Mr Cruden was seen at a casino attempting to exchange a sum of US dollars which almost exactly matched the stolen money. He was twice tried by a jury and on the second occasion convicted of burglary and sentenced on that offence.

[13] Mr Cruden offered no explanation at interview. The Court of Appeal noted that there was no alternative charge of receiving in the indictment and concluded that on the facts of the particular case it was not possible to be sure to the requisite standard that the appellant was the burglar as opposed to a receiver.

[14] The second point of difference highlighted by Mr Hawes was that whereas Mr Cruden did not proffer any explanation, plainly the present appellant did so, albeit one which was rejected by the trial Judge.

[15] Is this a case where there is proof of receiving to the exclusion of theft? To my mind there are important distinctions between this case and Cruden. The first is the time lapse between the theft of the mountain bike and the appellant’s endeavours to sell or pawn the bike at Cash Converters. The timeframe was almost a month, being from 16 August to 12 September. It follows this is not a case of very recent possession of stolen property. There was ample time during which the mountain bike could change hands between the thief and a receiver. Moreover, I see the time lapse as significant because even on 12 September Mr N arrived at Cash Converters without foorwear, when, as I have already noted, footwear was necessary to effectively make use of this mountain bike. This, I think, tends to indicate that he had come into possession of the bike at some stage over the relevant period and was not a person who had taken and used the bike over time.

[16] Perhaps of even greater significance is the distinguishing feature that Mr N advanced an explanation for his possession of the stolen item. I have outlined that explanation. He plainly said that he had obtained the bicycle from another person. In the event, and because of the implausibility of the surrounding details which he gave and the manner in which it was necessary for the constable to extract those details, the Judge was in little doubt that the explanation was false at least as to the parties involved in supplying the bike to the appellant. But, equally,

she was satisfied that he had received it from someone, albeit not the persons he referred to in the discussion with Constable Scott. There is a finding to that effect.

[17] Mr Bailey is, of course, correct in saying that the judgment does not contain a self-direction by the Judge in which she recorded the need to be satisfied beyond reasonable doubt that this was receiving to the exclusion of theft. That is perhaps not surprising. Cruden was not the subject of a submission at the hearing.

[18] Counsel stressed, rightly, that sitting on appeal by way of general rehearing it is my responsibility to reach an independent view concerning the adequacy of the evidence. Of course a Judge sitting in this Court on appeal does so with reference to the findings of the Judge in the Court below.

[19] Approaching the matter on that basis I am in agreement with the conclusion which the Judge reached. I regard both the period of delay and the circumstance that the appellant was adamant in saying that he had obtained the bike from somebody else as factors which point in one direction, namely that this was a case of receiving and not theft.

[20] For all these reasons I am satisfied that the conviction is safe and, accordingly, the appeal is dismissed.

Solicitors:

Andrew Bailey Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent