B v Police HC Invercargill CRI 2006 425 21

[2006] NZHC 1362

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2006 425 21

B

Appellant

v

POLICE

Respondent

Hearing:         6 November 2006

Appearances: D G Slater for Appellant

M Mika for Respondent

Judgment:      6 November 2006

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against conviction.

[2]      Some time between 3pm on 19 November 2005 and the morning of Tuesday,

21 November 2005 a digger bucket belonging to Works Infrastructure was removed from the roadside.  On the Tuesday morning an employee of Works Infrastructure noticed a truck and trailer unit passing with a digger on the trailer.  The employee believed that the bucket attached to the digger was the missing bucket.  He passed the word on to someone else within the organisation and ultimately the truck was

stopped by a Works Infrastructure employee.

B V POLICE HC INV CRI 2006 425 21  6 November 2006

[3]      The truck was being driven by the appellant.   It belonged to a company of which he was a director.   Although there is no direct evidence it can probably be safely inferred that the trailer belonged to the same company.  A person who was described by the appellant as his manager and partner was a passenger in the truck.

[4]      On the strength of a number of unique features of the Works Infrastructure bucket, which were pointed out to the appellant, it was put to him that the bucket belonged to Works Infrastructure.  This was denied by the appellant who said it had been purchased about eight months ago.  It should also be added that the bucket was attached to the digger and it was not disputed that the bucket had been modified so that  it  could  be  attached  to  the  digger.    Parts  had  been  recently painted.    The identification plate had been removed.

[5]      The police were called.  The appellant maintained his stance and was charged with theft.  No charges were laid against the passenger in the truck.

The Hearing

[6]      At the hearing counsel for the appellant (who was not Mr Slater) accepted that the bucket was worth $5,000 and that it belonged to Works Infrastructure.  Thus the issue at the hearing was whether the prosecution could prove that the appellant had stolen the bucket and, if not, whether he was guilty of receiving.

[7]      Uncontested evidence was given by a police photographer (who produced 15 photographs)  and  by  four  employees  of  Works  Infrastructure.    The  remaining witness for the prosecution, the detective who took over the inquiry, was cross- examined.

[8]      Mr B   gave evidence and was cross-examined.   In broad terms he said that he had been in Dunedin for a few days and had only returned to Invercargill at about 1am on the Tuesday morning.  He had to drive the truck later that morning because no-one else with the necessary licence was available.  He arrived at the yard at about 7.30am.  Because he was running late he parked his car, went over to the truck and started it.   His manager was already there and indicated that they were ready to leave.   Mr B   said that he took a hubodometer reading off the truck,

filled out his log book, and then began the trip to Queenstown.  On that journey they were stopped by the Works Infrastructure people.

The Decision

[9]      In his oral decision the Judge noted the concessions that had been made on behalf of the appellant and stated the issues already mentioned (whether it could be proved that the appellant had stolen the bucket and, if not, whether he was guilty of receiving).  Then he referred to questions of proof and summarised the ingredients of theft and receiving.  As I understand it, there is no issue about the accuracy of this analysis.

[10]    The Judge then referred to the photographs, which he said had been of assistance, and to the evidence of each of the witnesses for the prosecution.  Having summarised the evidence for the prosecution the Judge turned to the evidence given by the appellant, which he also summarised.

[11]     To a large extent this appeal revolves around the final paragraphs in the judgment.  At paragraph [17] the Judge said that he had had the great advantage of having heard and seen the appellant giving his evidence and that:

“[17] …In my view of the way in which he gave his evidence and what he said I find that the defendant’s evidence was much less than credible.  I do not assess him as a reliable witness at all.  Particularly in the way and manner in which he answered questions and the way in which he gave his evidence. First, the reference I make to the issue relating to his denial that he checked the hubodometer of the trailer when he was insistent that he had checked the hubodometer on the deck of the truck and pointed where he had gone to.  Secondly, I do not accept his evidence that the bucket that he had purchased with the loader would have been in the same condition and colour as the bucket as shown in photograph 2 and 3 which have been exhibited.  I would find it extremely unlikely that these two buckets would have been of a similar colour, size, condition etc. so as to mean the defendant would not have had his attention attracted to the bucket as it was on the trailer of the truck.  I further find that for the defendant to continue to say, as he did to the Detective, that the bucket was ‘his’, after it had been clearly pointed out to him by Mr Smart at the scene where the vehicle was stopped, that the unique features of the bucket established that Works Infrastructure owned the bucket, is again an indication of his unreliability in his evidence….”.

Having reached that conclusion the Judge said that he rejected the appellant’s evidence on the basis he had stated and that he put it to one side.

[12]     Attention was then turned to the prosecution case:

“[18]     I am now left with this situation – I am left in a situation where obviously the bucket found on and attached to this trailer was the bucket belonging to Works Infrastructure.  It had been taken from the Wye Creek work site by persons unknown in the weekend between

18 and 21 November.  I am not able on the evidence that I have to ascertain who was the actual thief.  However, what I do have in relation to this matter is a situation of where the bucket had been stolen over the weekend and on the Tuesday (within 48 hours) the altered bucket is found in the possession of the defendant.  I find as a proven fact that the defendant did know that this bucket had been taken from somewhere and had been altered in order to fit ‘his’ loader.  I believe that this is obvious from looking at the loader as it was positioned on the trailer and from the evidence of Mr Smart as to the recent spray painting of it and the fact that the spray painting covered (not only the actual bucket but also the chains attaching it to the deck of the trailer). I find that the defendant at the very least was reckless as to such knowledge in that he had possession in relation to the bucket from the time he took control of the truck and trailer in the yard.

[19]     I draw the inference that this item (the bucket) had been stolen.   Quite clearly shortly after the theft the defendant was found in possession of it.  That strongly suggests to me that the defendant either had something to do with the theft of the bucket or had obtained the property knowing or was reckless as to whether it had been dishonestly obtained.  The bucket had obviously been altered to fit the defendant’s loader.  I find after assessing all of the relevant evidence (including what the defendant said at the roadside and to the Police) that the defendant was, in my considered judgment, guilty of receiving …”.

Although the Judge was unable to determine the identity of the thief, he was satisfied that all the ingredients of receiving had been established beyond reasonable doubt. He amended the charge from theft to receiving and entered a conviction.

The Appeal

[13]     Mr Slater mounted the challenge to the conviction on two broad fronts.  First, he submitted that the Judge’s reasons for rejecting the evidence of the appellant were flawed.  Second, he maintained that even if the Judge was right to reject the evidence of the appellant, the prosecution evidence that remained was insufficient to prove the charge of receiving beyond reasonable doubt.   Each argument was developed in detail.

First Ground

[14]     In relation to the ground that the Judge should not have rejected the evidence of the appellant, Mr Slater raised four matters.

[15]     First, he submitted that the Judge had placed undue weight on the demeanour of the appellant.  He reminded the Court that people react and respond differently under pressure and when they are in unfamiliar situations such as giving evidence in

Court.  Under those circumstances, submitted Mr Slater, inappropriate weight should not be given to demeanour.

[16]     While I accept that demeanour is only one of the matters that a Judge needs to take into account when assessing a witness, it is obvious on the face of the Judge’s decision that he also took into account the content of the appellant’s evidence (I will return in a moment to the three matters that were mentioned by him).  The Judge had the advantage of hearing and seeing the witnesses, particularly the appellant, and he carefully explained his reasons for his conclusions about the appellant’s credibility. I do not think there is any plausible basis for me to overturn the Judge’s findings as to credibility on the basis that he gave too much weight to demeanour.

[17]     This brings me to the other three matters that Mr Slater raised as part of his challenge to the Judge’s rejection of the appellant’s evidence.  The first involves the Judge’s reference to the hubodometer.   Plainly the Judge did not believe the appellant’s evidence that he had not gone anywhere near the trailer.   Mr Slater submitted that there was no evidence in the form of log books or anything else to suggest that the appellant had checked the hubodometer on the trailer or, indeed, had gone anywhere near the trailer.  To the contrary, submitted Mr Slater, the appellant’s evidence was that he had not gone near the trailer and the Judge was wrong to reject that evidence out of hand.

[18]     Mr Slater’s argument needs to be assessed within the context of the overall evidence, not in a vacuum.  The Judge found it unbelievable that the appellant would check the truck hubodometer but not check the trailer unit when the same requirements applied to both.  When determining the inferences that could be safely drawn it was open to the Judge to take that factor into account.  Once the matter is assessed in the round I do not think that it could be said that the conclusion reached by the Judge was unavailable to him.  ‘

[19]     Mr Slater’s next point is that there was insufficient evidence for the Judge to reject the appellant’s evidence that the loader and bucket had been purchased eight months earlier.  Amongst other things Mr Slater noted that there was no evidence about the colour of the bucket when it was originally purchased.  He said that the

Judge was wrong to approach the matter on the basis that the original bucket was yellow.

[20]     While I agree with Mr Slater that there was not any evidence about the original colour of the bucket purchased by the appellant’s company, the Judge was not only talking about colour.  He also referred to the modifications to the bucket and its unique features which were clearly established by the Works Infrastructure evidence.   That evidence was not contested.   Under those circumstances it was plainly open to the Judge to arrive at the conclusion that the appellant had not been honest when he said that he had purchased the bucket eight months before.

[21]     The third and final reason was that even after the particular features had been pointed out to the appellant he continued to say that the bucket was his.  Again the Judge saw this as an indicator of his unreliability.  This must be the strongest factor counting against the reliability of the appellant’s evidence.  I have no doubt that the Judge was entitled to reach the conclusion that this was a very significant factor.

[22]     Once those matters are put together it was obviously open to the Judge to reject the appellant’s evidence.   Mr Slater said that the Judge did not necessarily have to reject the whole of the appellant’s evidence;  he might have rejected parts but relied on other parts.  In all the circumstances I believe that is unrealistic.  Clearly the Judge was generally unimpressed with the appellant’s evidence.

Second Ground Of Appeal

[23]     The second ground of appeal focuses on paragraph [18] and, in particular, to the Judge’s comment:

“I find as a proven fact that the defendant did know that this bucket had been taken from somewhere and had been altered in order to fit ‘his’ loader.”

Mr Slater rightly pointed out that in a receiving context the appellant’s knowledge is to be assessed at the time he came into possession.  He questioned whether there is any evidence that when he drove off from the yard the appellant would have known that the bucket had been unlawfully taken and altered.  In Mr Slater’s submission the

fact  that  the appellant  had  not  checked  the  trailer  before  driving  off  could  not possibly make him guilty on the basis of recklessness.  Mr Slater’s interpretation is that the appellant simply arrived at the yard, got in his truck, and drove away.

[24]     It is necessary to look at the evidence as a whole and to also take into account the doctrine of recent possession.  It was not disputed that the bucket had been stolen within the last few days;  the bucket was attached to a digger on the unit that the appellant drove out of the yard;  the bucket had been significantly altered so that it would fit the digger;  the identification plate had been removed;  parts of the bucket had been recently painted, indications being that the painting had taken place while it was on the trailer;   the appellant was not only the driver of the truck but also a director of the company that was intending to use the digger and bucket;   and the digger, with bucket attached, was being transported from the yard to a work site.

[25]     When all of these factors are put together it is scarcely surprising that the Judge arrived at the conclusion that the appellant did know when he drove off that the bucket had been stolen.  Any other interpretation is so implausible that it can be discounted.   The Judge was entitled to apply the doctrine of recent possession. Indeed, it could be said that the doctrine is tailor made for this very sort of case.

Outcome

[26]     The appeal against conviction fails and is dismissed.  Perhaps I should add that this is not for want of effort on the part of Mr Slater who has tenaciously pursued every possible argument that could have been mounted for the appellant.

Solicitors:         D G Slater, Invercargill for Appellant

Crown Solicitor, Invercargill