B v Police HC Auckland CRI 2006-404-368

[2007] NZHC 1666

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000368

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 February 2007

Appearances: A C MacMillan for Appellant

C Parkhill for Respondent

Judgment:      26 February 2007

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Auckland

B V POLICE HC AK CRI 2006-404-000368  26 February 2007

[1]      On 14 September 2006 B   was convicted of burglary of the Birkdale  Community  Centre  and  Creche  on  26  –  27  February  2005.  He  was sentenced to 100 hours community service. He appeals his conviction on the ground that it rested not on direct evidence, but on unsustainable inference.

Context

[2]      Between Saturday 26 February at 3pm, when the creche was locked and the alarm set, and Monday 28 February, when the creche was reopened, someone gained entry without force and without setting off the alarm and stole a DVD player, a 21 inch flat screen television, a video player, a stereo system and a remote control, altogether worth $540.

[3]      On 26 February ten men serving periodic detention, amongst them Mr B   and another detainee Robert Paul, charged with him with burglary, and in his case alternatively with receiving, had worked in the grounds of the creche and all had access to the creche, including the lounge from which the stolen items were taken.

[4]      On 10 May 2005, after Mr B  ’s fingerprints were discovered on a piece of paper attached by bluetack to an alarm sensor on the ceiling of the lounge, the police executed a search warrant at his home. None of the items taken were discovered. Mr B   consented, however, to make a statement and he accepted that the piece of paper over the sensor had been placed there by him.

[5]      When he and Mr Paul were having lunch in the lounge, he said, as he said later in evidence, a third detainee entered and opened a window, suggesting an intent to return later to take whatever was there. Mr B   himself,  he said, shut  the window and that led him to fantasise about how he might commit such an offence, perhaps coming in through the roof with a harness or, as he said ‘stuff like that’. Then he said this in his statement:

While I am talking I am jumping around and acting it out. I grabbed the piece of paper and covered the sensor saying ‘that’s that risk covered’. I was just mucking round.

[6]      On 1 August 2005 the police searched Mr Paul’s house under warrant and discovered the five items, later identified by the creche co-ordinator. Mr Paul also consented to make a statement. He said that the items had been given to him by a boarder, whom he could not identify then or later, in place of rent. The boarder, he confirmed, was someone whom Mr B   appeared also to know. The boarder was not Mr B  ’s third detainee.

[7]      The issue as it  related to  Mr  B   was whether  the piece of paper  he admitted to placing over the alarm while he was in the creche with authority, in the context of the evidence as a whole, sufficed to implicate him in the burglary. There was nothing else in a direct sense. Mr Paul put in issue the adequacy of the evidence linking the items taken in the burglary with those found in his home some months later.

[8]      In her decision the Judge reminded herself that she had to be satisfied on the evidence admissible against each whether the charges they faced individually were proved. She concluded that the fingerprints and the ultimate locus of the property taken was evidence admissible against both. Did that evidence, she asked herself, show coincidence or design? Reminding herself that she needed to be careful in any inference that she drew, she found design and convicted Mr B   of burglary and Mr Paul of receiving.

Discretion on appeal

[9]      Though this appeal is by way of rehearing, Mr B   must show that the decision under appeal is wrong: Herewini v Ministry of Transport [1992] 3 NZLR

482, 489, Fisher J. He must show that the inferences on which the Judge relied fell short of establishing one or  more of the essential elements of the offence:  R  v Ramage [1985] 1 NZLR 392 (CA); R v Hart [1986] 2 NZLR 408. In assessing that, this Court on appeal will be slow to differ from the Judge’s findings of credibility: Tetau v McPherson [1956] NZLR 34, Turner J; or from her inferences unless they are critical and unsupportable: R v Puttick (1985) 1 CRNZ 644, CA.

Judgment under appeal

[10]     In her decision the Judge stated the essence of Mr B  ’s defence to be this:

The defence for Mr B   points to the fact that there were a number of other people doing periodic detention who could be potential candidates, or indeed anyone. Furthermore there were no other fingerprints of Mr B   found at the point of entry. The defence is that there is insufficient proof that he was involved in this burglary and it is a reasonable possibility that his fingerprint having been found on the piece of paper over the alarm was simply as a result of larking about.

[11]     In rejecting that defence the Judge said this as to Mr B  :

… he was doing periodic detention at the Birkdale creche with Mr Paul who was his friend. He placed a piece of paper over an alarm sensor. A day or so later a burglary was committed and the stolen property was found some time later in Mr Paul’s possession. There is a very sensible inference that that action  of  putting  the  paper  over  the  sensor,  in  the  absence  of  any explanation, was in preparation of the burglary. Although there was no direct evidence that Mr B   committed the burglary in the sense of someone seeing him, I find when I look at the evidence collectively, particularly the paper and where the property was found, that there is at least a sensible and really the only available inference that he was a party to and assisted in the burglary by placing the paper over the sensor shortly before the burglary occurred.

[12]     The  Judge  discounted  Mr  B  ’s  explanation,  which  she  accepted  the police had to discredit to establish the case against him. She said:

He went to the trouble of getting a piece of paper. He had to get something to stick it on the sensor with. He wrapped it round the sensor. It was not as if it was in immediate proximity to him. It was in a very high position and he had to get something to stand on to perform his action. He then left it there. He gave evidence that he was concerned about men looking at the items so he shut the window to protect the creche from a possible burglary. That is completely inconsistent with the notion of placing a piece of paper over the sensor and leaving it there.

[13]     As well as dismissing the explanation as incredible, the Judge discounted Mr B  ’s description of the part played by the third detainee. The fact that he and Mr Paul coincided in this, she considered, was beside the point. That was something that they could easily have concocted. Mr B  , she concluded, was culpable, probably as a principal but at least as a party. She convicted Mr Paul of the lesser offence of receiving because she concluded that he played a lesser part. Clearly she regarded

Mr  B  ’s  overt  act,  the  placing  of  the  paper  over  the  sensor,  as  speaking powerfully as to his larger part.

Conclusions

[14]     On this appeal Mr B  ’s counsel has subjected the Judge’s reasoning to a searching critique but I have to say that her reasoning seems to me both sustained and coherent.

[15]     Clearly, as the Judge recognised, this was a case, which depended not on direct but on indirect evidence. There was nothing to show that Mr B   entered the  property that  weekend  after  3  pm on the  Saturday,  having  been  there  with authority before. There was nothing to show that he had benefited tangibly, as Mr Paul had. He had nothing at his property. But he had left a telling fingerprint, the significance of which is not to be underestimated.

[16]     It is true, secondly, that there were as many as ten candidates that Saturday, who might have committed this offence, amongst them Mr B   and Mr Paul. The distinction between Mr B   and Mr Paul, however, and those other detainees, on the evidence as it was, is marked and one the Judge was entitled to make. No other detainee that day left behind so telling a fingerprint. No other detainee that day was found in possession of what was taken.

[17]     What relationship there was between Mr B   and Mr Paul at the time of the offence and after may, as is said on his behalf, be more moot than the Judge imagined. The fact remains that they knew each other and knew each other well. They had known each other since they were at school together. They had reason, as the Judge found, both of them, to minimise any contact with each other after the event. Each gave evidence, predictably, designed to deflect the police case.

[18]     What is critical, as the Judge found, is that on that Saturday both were in the lounge from which the items were abstracted later in the weekend. And so, even if their relationship was less close than the Judge imagined she was still fully entitled to  conclude  that  this  was  not  inconsistent  with  a  shared  intent  to  exploit  an

opportunity the tangible effect  of which was  later  sheeted home to  Mr Paul as receiver.

[19]     As to Mr B  , ultimately the Judge understandably came back to this. How it  was that  he explained doing what  his  fingerprint  fixed  him with doing, masking the sensor with the paper. What he did, as the Judge said, was consistent only with preparing to commit a burglary unless he explained it away. Should she have been more troubled by his explanation, that he confirmed in evidence, that he was larking about?

[20]     The Judge should have seen, Mr B  ’s counsel says, that Mr B  ’s explanation did not stand by itself. Mr Paul corroborated it.  He said that he took no notice of what Mr B   did with the paper, because he thought him incapable of any offence. But the Judge was entitled to discount this; to conclude that Mr Paul had every reason to distance himself from the one piece of overt evidence that there was; to treat Mr B  ’s explanation as standing or falling by itself.

[21]     Mr B  ’s explanation, the Judge was entitled equally to find, did not begin to account for what he actually did; that he was not larking about and that he masked the sensor deliberately; that the burglary without forced entry, and without the alarm going off, was more than coincidence. She was entitled in short to conclude that Mr

B  ’s culpability was clear. The appeal will be dismissed.

P.J. Keane  J