Brown v Police HC Gisborne CRI-2011-416-022 [2011] NZHC 928 (3 August 2011)

Last Updated: 27 August 2011

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

_{CRI-2011-416-022}

BETWEEN RENA RAHUIA BROWN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 August 2011

Counsel: L J Hemi for Appellant

C R Walker for Respondent

Judgment: 3 August 2011

ORAL JUDGMENT OF THE HON JUSTICE KÓS (Appeal against conviction)

[1] On 14 February 2011 Ms Rena Brown bought a car. But the car had been stolen. She did not go to a car yard. Rather the vendor brought the car to her. Late at night. The vendor was not a licensed motor vehicle dealer. He was, as she knew, a member of the Black Power gang. There was no paperwork. The car was worth between $2,300 and $3,800. She paid $600 for it. Belatedly she came up with a story that she had traded some mag wheels as well, making the total consideration more like $2,000. The wheels did not belong to her, however. The owner of the wheels was to become a co-purchaser. But Ms Brown could not recall in evidence what the co-purchaser‟s surname was. The co-purchaser was not called to give evidence.

[2] The Judge did not believe Ms Brown‟s story about the mag wheels. So he convicted her of receiving the car, being reckless as to whether or not it had been stolen.1

_{[3] Ms Brown appeals her conviction.}

1 _{Under ss 246 and 247 of the Crimes Act.}

BROWN v NEW ZEALAND POLICE HC GIS CRI-2011-416-022 3 August 2011

[4] She says:

(a) The Judge was wrong in law to have excluded as (hearsay evidence) the evidence of an explanation given to her by the vendor as to why the vehicle ignition was broken.

(b) The Judge was wrong in law to apply the “doctrine of recent possession”.

(c) The Judge failed to give adequate weight, in disbelieving Ms Brown‟s story about the mag wheels, to the fact that the explanation was “later” because she had declined to give a formal statement. This was a relevant consideration inadequately addressed.

Hearsay point

[5] Ms Brown gave evidence that she was suspicious about the bona fides of the car. That was because the car had a broken ignition lock and needed to be started with a screwdriver. She said she taxed the vendor about that fact. He told her that the key had snapped in the lock and showed her a broken key.

[6] This is what the Judge said about that evidence:

The difficulty I have is that, it is hearsay, and I cannot make an assessment of that person she bought it from; he is not present in Court and was not summonsed to speak for the defence. I have to say that for all the good reasons that Courts do not usually admit hearsay evidence, I find it difficult to place any great weight or significance on what this purchaser was supposed to have told Ms Brown. What I accept is that she made the enquiry, that some explanation was given to her which she claims satisfied her, and that this vehicle was one that was not stolen. That was her evidence.

[7] I am satisfied that there is nothing in the appellant‟s complaint on this score. The Judge, as I read it, has not excluded the evidence at all. He has said it is hearsay; which it is, in the sense it is Ms Brown‟s account of what was said to her by someone who is not giving evidence. It remained admissible not as to the truth of its

contents, but as to the fact it was made at all. But that still leaves a credibility issue as to:

(a) whether that in fact occurred or was Ms Brown making that story up?

and

(b) whether she was reckless in response to the statement.

[8] The Judge simply said he could not place great weight on the account that Ms Brown had given. There was more than adequate other evidence for the Court to convict on given Ms Brown‟s own account of the conversation with the vendor confirmed that she was firmly on notice that the vendor‟s right to sell was dubious.

Doctrine of recent possession point

[9] The Judge applied the doctrine in this way:

I have come to a view that it was unreasonable for her to continue with the taking of this vehicle into her possession. In part, I can say I rely on what is called the „doctrine of recent possession‟ in law. In effect, that is simply a common sense statement that if a vehicle is stolen and within a period of time that vehicle is in the possession of another person (and possession her is not in contention) then the law allows a common sense inference to be drawn that that person either stole the vehicle or received it.

[10] The appellant complains the Judge should not have applied the doctrine. Counsel, Mr Leonard Hemi, says that as a matter of law no available inference could be made by the Court based on the fact the vehicle was located in the appellant‟s possession. Mr Hemi further submitted that the 19 day period between the vehicle being stolen and being received by Ms Brown was not sufficient in law to entitle the Court to draw an inference in accordance with the doctrine of recent possession.

[11] There is nothing in this point however. The doctrine is really irrelevant in this case. The doctrine permits proof of receiving by circumstantial evidence,2 based on temporal proximity of the theft itself. It enables an inference that the accused

_{stole the property or received it from the thief. It displaces the other available}

2 Sir Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [219.09(1)].

inference, that the property was acquired legitimately. But here the basic circumstances in which Ms Brown came to be in possession of the vehicle are not in dispute. Ms Brown gave evidence about it. She said she had bought it “off the Black Power”. It is how she bought it that implies convincingly her guilt on the charge of receiving. As to that, Judge Connell said that he did not accept or believe the story she gave about the mag wheels and the price paid; did not believe the fact that the broken ignition was a reasonable explanation such as to satisfy Ms Brown overall that the vehicle was not stolen; and considered in the overall circumstances of sale well below value that the charge was proved beyond reasonable doubt.

Relevant consideration point

[12] The appellant submits that the Judge failed to give sufficient weight to the following five circumstances:

(a) when first stopped and spoken to the appellant was surprised and upset;

(b) the appellant was only spoken to on an informal basis on the side of the road;

(c) the appellant was not given a chance to read the constable‟s notebook;

(d) the appellant was not given the opportunity to add or correct anything written down in the constable‟s notebook; and

(e) the appellant declined to make a formal statement or provide an evidential video interview about the incident.

[13] This is important because of the emphasis placed by the Judge on the fact that the explanation as to the mag wheels was late in being advanced, being given only at trial.

[14] I am satisfied, however, that the Judge was clearly cognisant of the five matters Mr Hemi points to. The first, second and fifth are all directly referred to in the course of the judgment. The third and fourth are implicit. Indeed the Judge took a very sympathetic position to Ms Brown in relation to the roadside interview. He said that, but for the fact that she had given evidence at trial confirming its content, he would not have admitted the constable‟s evidence. That is because the constable candidly could not recall having given the requisite warnings.

[15] The account given by Ms Brown as to the explanation given by the vendor, her having been satisfied by it, and as to the mag wheels transaction (in the absence of any corroborative evidence from the vendor – which is understandable – or the alleged co-purchaser – which is less so) is all highly improbable. Ms Brown gave evidence, and that evidence was disbelieved by the Judge. He was entitled on the evidence before him to conclude that she was on notice of the dubious provenance of the vehicle and that she retained possession of it recklessly as to whether it had been stolen.

[16] Despite the thorough and well-focused submissions of Mr Hemi, no miscarriage of justice has occurred and accordingly the appeal will be dismissed.

Stephen Kós J

Solicitors:

Eastland Legal, Gisborne for Appellant

Crown Solicitor‟s Office, Napier for Respondent