Blackmore v The the King
[2022] NZHC 2617
•11 October 2022
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2022-441-000015
[2022] NZHC 2617
BETWEEN NGAWAI TE RANGIMARIA BLACKMORE
Appellant
AND
THE KING
Respondent
Hearing: 20 September 2022 Appearances:
P J Jensen for Appellant
L M Marshall for Respondent
Judgment:
11 October 2022
JUDGMENT OF GRICE J
(Conviction appeal)
Introduction
[1] On 27 June 2022, following a Judge-alone trial in the District Court at Napier, Ms Ngawai Blackmore (the appellant) was found guilty and convicted of one charge of receiving a gold charm bracelet valued in excess of $1,000.1
[2] The appellant appeals against that conviction on one ground, namely that the Judge was plainly wrong. The respondent opposes the appeal.
1 Police v Blackmore [2022] NZDC 11803 [the decision]; Crimes Act 1961, ss 246 and 247(a) — maximum penalty seven years’ imprisonment.
BLACKMORE v R [2022] NZHC 2617 [11 October 2022]
Background
[3]The appellant faced trial on three charges of receiving stolen property, namely:
1)a gold and ruby ring with a new replacement value of $2,000;
2)a child car seat and gold ring valued at over $1,000; and
3)a gold charm bracelet valued at $4,000.
[4] In the District Court, Judge Matenga found the appellant not guilty of the first two charges but guilty of the third. It is only the third charge which is the subject of the present appeal.
[5] The gold charm bracelet had been stolen between 2 February 2021 and 3 February 2021. The appellant took it to the Napier Antique & Jewellery Centre (the shop) to make an enquiry as to its value on 3 February 2021. The owner and manager of the shop (the shop owner) gave evidence that, as the Judge put it, “alarm bells went off for her as to whether or not the charm bracelet was stolen property” because the appellant “did not seem to know much about the bracelet.”2
[6]The Judge set out what happened after the appellant left the store as follows:
[24] [The shop owner] then checked back on her records. She had been given the [appellant’s] name and she had recognised the [appellant] as being someone she’d had dealings with before. Then on checking her records [the shop owner] saw that a previous item, a gold and ruby ring, had been reported stolen. [The shop owner] then followed the [appellant] out of the shop and called her by name. The [appellant] and [the shop owner] then had a further discussion. [The shop owner] said to the [appellant] that the bracelet may belong to someone else and that she would get it checked out and was prepared to purchase the bracelet from the [appellant] if the bracelet was bona fides. The [appellant] then gave the bracelet to [the shop owner] who then took it with her back to the store. Subsequent enquiries did in fact show that the bracelet was indeed stolen property from a burglary.
2 The decision, above n 1, at [23].
District Court decision
[7] In relation to all the charges, there was no issue that, first, the property in question in respect of each charge was stolen, secondly, that the appellant had possession or control of the property in question, and thirdly, that the property had the respective values alleged.3 The Judge considered the real issue in each case was whether at the time the property was received, the appellant knew that the property was stolen or was reckless as to whether it was stolen.4
[8] In respect of the first two charges, the Judge found that there was insufficient evidence to suggest that the defendant either knew the property in question had been stolen or was reckless as to whether it had been stolen.5 Those charges were accordingly dismissed.6
[9] On the third charge, relating to the gold bracelet, the Judge found the elements of the charge were proved beyond reasonable doubt and the appellant was guilty of that charge.7 The Judge was of the view that the appellant’s actions indicated that she either knew that the property was stolen or was deliberately reckless as to whether or not the bracelet was stolen.8
[10]The Judge explained his reasoning in the following way:
[25] The issue here for me today is whether or not at the time that the [appellant] exercised control, that is at the point where she gave up the bracelet to [the shop owner], whether or not she knew or was reckless in relation to whether or not the item was dishonestly obtained. Did the [appellant] recognise that there was a real possibility that the property was stolen and that having regard to that possibility were the [appellant]’s actions unreasonable?
[26] I have formed the view that this exchange between the [appellant] and [the shop owner] shows that the [appellant] knew that the property was stolen. She, in my view, gave it up too easily. If it was indeed hers and it was her firm belief that it was hers then it is more likely that the [appellant] would not have given up the bracelet but would have asserted her right of ownership. The [appellant] was even thankful that [the shop owner] was dealing with it in such a nice way. The [appellant]’s actions, in my view, indicate that she knew either
3 At [8]–[9].
4 At [10].
5 At [16] and [20]–[21].
6 At [17] and [21].
7 At [27].
8 At [26].
that the property was stolen or was deliberate reckless [sic] as to whether or not the bracelet was stolen.
[11] The Judge was of the view that in the circumstances, noting that this was the appellant’s first dishonesty conviction, a conviction alone would be sufficient penalty.9
Submissions
Appellant's submissions
[12] The appellant brings the appeal on only one ground of appeal, that the District Court Judge was plainly wrong. She submits the Judge misapplied a specific fact and in doing so misunderstood the standard required for reckless possession of a stolen item.
[13] In particular, counsel for the appellant submits there is no room for any inference that the appellant knew, at the time she was enquiring about whether the bracelet was real and what its value was, that the bracelet was stolen, or that she was being reckless in her possession of it.
Respondent's submissions
[14] The respondent opposes the appeal. It says it was open to the Judge to find the appellant guilty of the third charge of receiving. Counsel for the respondent submits the Judge did not err in his assessment of the evidence and no miscarriage of justice occurred.
Approach on appeal
[15] An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. The Court must allow an appeal of a decision in a Judge-alone trial if the Court is satisfied that:10
1)the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
9 At [29].
10 Criminal Procedure Act 2011, s 232(2)(b)–(c).
2)a miscarriage of justice has occurred for any reason.
[16] A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that— (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity”.
[17] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.11 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.12
[18] An unfair trial exists when errors are prejudicial or unacceptably give rise to the appearance of unfairness. It is not every departure from good practice which renders a trial unfair.13 A miscarriage is “more than an inconsequential or immaterial mistake or irregularity”.14 Rather, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the decision.15
[19] If the appeal is allowed, the Court must set aside the conviction.16 The Court has a broad discretion as to next steps, including the ability to direct that a judgment of acquittal be entered, to direct that a new trial be held, to substitute a conviction for a different offence or to make any other order it considers justice requires.17
Analysis
[20]I now turn to assess whether a miscarriage of justice has occurred.
11 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
12 At [110].
13 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
14 Matenga v R [2009] NZSC 18 at [30].
15 R v Condon, above n 13, at [78], citing with approval Randall v R, above n 13, at [28].
16 Criminal Procedure Act, s 233(2).
17 Section 233(3).
[21] As the Court of Appeal held in R v Kennedy, the relevant knowledge or recklessness that the property was stolen or dishonestly obtained must exist at the time of receiving the property.18
[22] The Judge misstated the time at which this state of knowledge or reasonableness applied by referring to it as the time at which the appellant gave the bracelet up. However, earlier in his judgment he referred to the correct time for applying the test, being the time when the goods were received. I am satisfied that the misstatement was immaterial to the Judge’s finding in this regard.
[23] When the Judge made the finding as to the appellant’s state of mind in relation to the bracelet, he had in mind that the bracelet had been stolen very recently, sometime in the preceding day. The clear inference of the Judge’s finding that the appellant knew, or was reckless as to whether, the bracelet was stolen at the time she gave it up is that the Judge was of the view this state of mind applied at the time at which the bracelet came into her possession, within the last day. This misstatement does not render the trial unfair. The situation might have been different had there been a more significant period of time between the time at which the property had come into the appellant’s possession and the time at which she gave it up. However, given the short time between it having come into her possession and the time the appellant gave up the bracelet there is no material error.
[24] The next question is whether the Judge erred in his finding that the appellant’s actions indicated that she either knew or was reckless as to whether the bracelet was stolen.
[25] As to “knowledge”, as the Court of Appeal recognised in R v Crooks, there may be circumstances which are so compelling as to lead to an inference properly drawn that the defendant was aware that the property was stolen, such as purchase at a gross undervalue, secrecy in the receiving, receiving the property at an unusual time or place or in an unusual way, or the removal of identifying marks.19 As to “recklessness”, in Cullen v R the Court of Appeal said in this context it requires the
18 R v Kennedy [2001] 1 NZLR 314 (CA).
19 R v Crooks [1981] 2 NZLR 53 (CA) at 58.
conscious taking of an unreasonable risk.20 In R v Crooks, the Court of Appeal recognised that a substantial suspicion will give grounds for holding that the defendant was reckless as to the possibility the property was stolen.21 The Court in Cullen v R added that complete indifference about whether goods were stolen would itself amount to recklessness.22 As the Court there stated, “[i]t seems reasonably clear that if someone receives property, the source of which is unknown, then a conscious risk is taken in determining not to make further inquiries.”23
[26] Counsel for the appellant submits that the appellant’s enquiry of the shop owner as to whether the bracelet was real leads only to one inference, namely that at that time the appellant did not know what she had and was making a genuine enquiry. That on its own may be insufficient to give rise to the required inference. But it was open to the Judge to accept that such a query could raise “alarm bells” that it is stolen property.
[27] Counsel for the appellant then submits that the Judge failed to consider the exchange between the appellant and the shop owner outside the shop, and the appellant’s subsequent behaviour, which counsel says could be equally consistent with an innocent mind. Mr Jensen says that the appellant’s behaviour when she was spoken to by the shop owner is consistent with her being cooperative and humble, not behaviour consistent with acknowledging the item was stolen.
[28] However, it is an available inference from the appellant’s behaviour after she was followed onto the street by the shop owner, coupled with the exchange in the shop, that the appellant had the required knowledge or was reckless as to whether the bracelet was stolen. The Judge formed the view that because the appellant gave the bracelet up so easily, and was even thankful that the shop owner was dealing with it in the way she did, this meant that she either knew or was deliberately reckless as to whether the bracelet was stolen. I am satisfied such a view was a reasonable inference on the evidence as a whole. In particular, I see no flaw in the Judge’s reasoning that if the bracelet had in fact belonged to the appellant, “it is more likely that [she] would
20 Cullen v R at [23], citing R v Harney [1987] 2 NZLR 576 (CA) at 579.
21 R v Crooks, above n 19.
22 Cullen v R, above n 20, at [23].
23 At [23].
not have given up the bracelet but would have asserted her right of ownership.”24 His finding does not create a real risk that the outcome of the trial was affected or resulted in an unsafe verdict.
[29] This is a case where the Judge had some advantage over this Court in seeing and hearing the evidence. The evidence of the transaction included the appellant’s behaviour when she came into the shop and asked whether the bracelet was real. It is common ground that the value of the bracelet was substantial. The shop owner got the appellant’s name and told her to bring it back another time. The appellant left the shop and after that the shop owner realised she had purchased a ring off the appellant which had been stolen and ran after the appellant. The crucial evidence given by the owner is as follows:
A. She came into the, I can remember it very clearly, she came into the shop, she stood by the counter by the doorway and wanted to know if it was worth anything and what it was. So I had [a] good look at, at it and I thought she looked familiar and she had said that she’d sold something to us before. So I asked what her name was and I said you know you can bring it back another time or words to that effect and she left the shop. I checked up what I’d bought off her and I realised that I had purchased the ring that was stolen so she was nearly half way down sort of by the Cathedral I ran off after her, called her name and she stopped. And I just said to her look I believe this doesn’t belong to you but it will belong to somebody that would like it back and that the ring she’d sold to us was stolen and that I would purchase it off her if I could get it back to the shop, get it checked out by the police and, um, and which she did and then when she left she thanked me for being so nice about it, so it was very –
[30] Taking the incident as a whole, it was open to the Judge to reach the conclusions that he did. He reached those conclusions based on inferences made as to the appellant’s behaviour throughout, including when she was apprehended. As I have indicated, he saw and heard the witness, which in this case gives the Judge an advantage over the appellate courts in an assessment of the evidence.
Conclusion
[31] For the foregoing reasons, I am not satisfied that a miscarriage of justice has occurred in this case.
24 The decision, above n 1, at [26].
[32] Although the Judge misstated the particular moment at which the appellant’s state of mind was to be assessed, I am satisfied he had in mind the correct test and relevant time and the misstatement did not affect the trial in any material way. Secondly, I am satisfied the Judge, having heard the evidence, was entitled to make the inferences and findings he did.
[33]The appeal against conviction is dismissed.
Grice J
Solicitors:
Philip Jensen Barrister, Napier Elvidge & Partners, Napier
0
3
0