Boulton v Police

[2016] NZHC 1474

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-10 [2016] NZHC 1474

BETWEEN

LISA BOULTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 June 2016
Appearances:	H Cuthill for Appellant M-J Thomas for Respondent
Judgment:	30 June 2016

JUDGMENT OF MANDER J

[1]      The appellant, Lisa Boulton, appeals her conviction on a charge of stealing griselinia littoralis trees (shrubs).  She argues there was insufficient evidence for the Court to find the charge proved beyond reasonable doubt and that the trial Judge erred in her application of the so-called doctrine of recent possession in finding her guilty.

Factual background

[2]      There was no dispute as to the circumstances of the theft.  On the night of

29 August 2015, 14 shrubs planted along the front border of the complainant’s address were dug up.  A dirt trail could be followed which led to the shrubs being located at the rear of Ms Boulton’s property further down the same street.  The shrubs were located behind a shed.

[3]      A constable interviewed Ms Boulton about the stolen shrubs.  A statement in which she denied being the person responsible for taking the plants was produced to

the Court. Ms Boulton stated that on the night the shrubs were taken she was at home

BOULTON v NEW ZEALAND POLICE [2016] NZHC 1474 [30 June 2016]

watching television. At 12.45 am she went to a bar in Invercargill. She stated she got home at about 3.15 am and then took a sleeping pill. She woke up at 6.20 am and had a smoke before going back to sleep.  She maintained she had no knowledge of the plants, and stated “Someone must have just left them there or thought I would like them”.

District Court decision

[4]      The District Court Judge, after reviewing the evidence, observed the onus was on the prosecution to prove the ingredients of the charge beyond reasonable doubt, and that the defendant must have the benefit of any doubt that may arise.1    The Judge concluded the shrubs had clearly been stolen, and identified the essential question as being whether the evidence was sufficient to find that Ms Boulton was the thief.  The Judge continued in the following terms:

[16]      … This is a matter of circumstantial evidence and therefore the police rely on the recent possession of the trees by Lisa Boulton to the extent that there could be an inference drawn that the property was found so soon after the theft, that the defendant could be said to be in recent possession and could be said to be the thief on this occasion.

[17]      There must be proof of the goods being stolen, if that is to happen, R v K [1967] NZLR CA (sic).  The Court is quite satisfied that these trees were stolen.  The Court is satisfied on the evidence of the fresh dirt trail directly from the property of the complainant to the property of the defendant and the trees being found on her property behind the shed. That there is a reasonable inference to be drawn on circumstantial evidence that Lisa Boulton was the thief and stole those 14 Griselinia Littoralis trees, between the time of 29

August and 30 August 2015.

The competing arguments

[5]      Ms Boulton submitted the circumstantial evidence was insufficient to establish she was in possession of the shrubs notwithstanding them being found on her property. She submitted this fact alone was insufficient to discharge the onus on the prosecution to establish that she was the thief.   For the doctrine of “recent possession” to be legitimately applied the Court would need to be satisfied that she had “real and exclusive control” of the shrubs, and this was not an available inference on the

circumstances. Because of the short period of time that had elapsed between the taking

1      Police v Boulton [2016] NZDC 7930.

of the plants and them being located on her property, it could not safely be concluded she was aware of their presence.

[6]      The police submitted the question arising on the appeal was whether there was sufficient evidence to establish that Ms Boulton was in possession of the shrubs.  It submitted the undeniable circumstance of their presence on her property was capable of supporting the inference that she was the thief. The police submitted the evidence was capable of overcoming Ms Boulton’s denial of knowing about the shrubs.   It pointed to the following pieces of circumstantial evidence which, in its submission, combined to permit such a finding:

(a)      The shrubs were found on Ms Boulton’s property of which she was the sole occupant.

(b)The trees were located behind a shed on the property from which the inference could be drawn that they were being hidden.

(c)      Ms Boulton already had other similar shrubs on her property which she had planted.  She had admitted that she was a keen gardener, and the fact she had other similar trees on her property suggested she was interested in that particular shrub and motivated to acquire such plants.

(d)It was apparent the shrubs had been purposely dug up, likely with the use of a spade. This suggested a premeditated act with the thief having brought a spade to the scene for that purpose.  For the person to then leave the stolen shrubs at a nearby property would suggest the occupant was involved in the theft.

[7]      The police submitted that upon analysis of all the known circumstances the District Court was entitled to reject the only alternative theory which was that a third party had put the trees on Ms Boulton’s property.

Analysis

[8]      The “doctrine of recent possession” is a description applied to the common situation of a person being found in possession of recently stolen goods. A reasonable inference can be drawn in the absence of an adequate explanation to infer the person in possession of the items was the thief or the dishonest recipient of the goods.2

[9]      It is indisputable the circumstances of the present case were capable of supporting a legitimate inference that the person subsequently found in possession of the shrubs was the thief.   The prosecution could point to the short lapse of time between the taking of the shrubs and their subsequent location on Ms Boulton’s property. The trail of debris which could be followed from the complainant’s address, down the street and up Ms Boulton’s driveway to the back of her property, supported the conclusion the shrubs were directly taken to that location immediately after they were dug up.  Ms Boulton was the only person who lived at that address and who appeared to have legitimate access to the area where the trees were found.

[10]     The  prosecution  could  therefore  properly  submit  there  was  a  sufficient evidential basis upon which Ms Boulton could be found beyond reasonable doubt to have been the thief. However, before reaching such a conclusion it would be necessary to address Ms Boulton’s explanation and denial of her knowledge of the shrubs being on her property.

[11]     As the police have acknowledged in their written submission, as a matter of law possession requires both a physical and mental element.  The Court of Appeal in R v Cox put it in the following terms:3

Possession involves two, not three, elements.   The first, often called the physical element, is actual or potential physical custody or control.   The second, often described as the mental element, which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and an intention to exercise possession. In the leading case of R v Warner, Lord Morris of Borth- y-Guest expressed it this way at p 289.

2      R v Cruden [2007] NZCA 537 at [9].

3      R v Cox [1990] 2 NZLR 275 (CA) at 278.

In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it…

[citations omitted]

[12]     Ms Boulton’s defence effectively distilled to one of ignorance.  She relied on the written statement she provided to the Court regarding her movements on the night the shrubs were taken and that she did not know how the plants came to be on her property.

[13]   The effect of a defendant giving evidence or providing a statement in explanation or denial of the prosecution case is well-known.  In the context of a jury trial it is encapsulated in what is sometimes referred to as the tripartite direction, whereby the defendant’s evidence or statement will have the effect of leaving the fact- finder drawing three possible conclusions.  Firstly, the defendant’s explanation may be accepted as truthful, alternatively it may leave the fact-finder unsure and thereby create a reasonable doubt, or, thirdly, it may be rejected, in which case there is a requirement to examine the prosecution evidence to determine whether it establishes the defendant’s guilt beyond reasonable doubt.

[14]     It cannot be suggested that a District Court Judge sitting on a Judge alone trial is required to direct themselves in such terms, or articulate the type of direction normally given to a jury.  However, where an explanation has been offered and put in evidence it is incumbent on the trial Court to explicitly address that explanation before accepting the proven circumstances have established the charge beyond reasonable doubt.

[15]     This need is particularly acute in a situation such as the present where the prosecution relies on a collection of circumstances to draw a reasonable inference that the defendant had knowledge of the stolen goods located on her property.  Such an inference is essential to the doctrine of recent possession because it will only have application if the defendant’s explanation is rejected.

Decision

[16]     In an appeal from a Judge alone trial, the appeal Court must allow the appeal if it is satisfied the Judge erred in his or her assessment of the evidence and the error created a real risk that the outcome of the trial was affected.4   A “real risk” has been held to exist when “there is a reasonable possibility that a not guilty (or more favourable)  verdict  might  have  been  delivered  if  nothing  had  gone  wrong”.5

Ms Boulton is not required to “establish a miscarriage in the sense that the verdict is unsafe”, she must only establish that there is a real possibility the verdict would be unsafe.6

[17]     In examining whether there was a real risk of the outcome of the trial being affected by the Judge not addressing Ms Boulton’s explanation, it is necessary to focus on what was at the heart of the prosecution case, namely Ms Boulton’s apparent recent possession of the shrubs. The doctrine of recent possession has been described by the Court of Appeal in the following way:7

What is known as the doctrine or [recent] possession is no more than a description of the reasoning process legitimately available to a Court when evaluating evidence led at trial to support a dishonesty charge.  Whether the doctrine is properly described as a “specific piece of law” or not is of no consequence.  Judge Moore was right about its purpose and effect.  As Mr Greig accepted, he correctly directed the jury that, in the absence of an explanation which  might reasonably be true,  it could  draw an inference adverse to Mr Stuart from the fact of his possession of the stolen bike the day after the robbery.

[18]     A classic direction provided to a jury on this point is set out in R v Aves:8

Where the only evidence is that an accused person is in possession of property recently stolen, a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession, or (b) the jury is satisfied that the explanation he does offer is untrue.  If, however, the explanation offered is one which leave the jury in doubt of whether he knew the property was stolen, they should be told that the case has not been proved, and therefore the verdict should be Not Guilty.

4      Criminal Procedure Act, s 232(2)(b) and (4).

5      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110], per Tipping J.

6 At [110].

7      R v Stuart [2008] NZCA 66 at [17].

8      R v Aves [1950] 2 All ER 330 (CA) at 330.

[19]     What is highlighted by these authoritative statements is the centrality of the absence or adequacy of an explanation provided by the defendant when assessing the legitimacy of the inference to be drawn from the defendant’s apparent possession of the stolen goods.  In my view, the fact-finder, whether it be a jury or a Judge sitting alone, is required to focus on the explanation proffered by the defendant in order to make a valid assessment of the circumstantial case.  Only by doing so can there be confidence that the prosecution case has been proved beyond reasonable doubt based upon the reasonable inference to be derived from the known circumstances.

[20]     It is not apparent on the face of the District Court Judge’s decision that she addressed this important part of the decision-making process. It was necessary for the District Court to consider the defendant’s explanation and articulate why it was not accepted.  While the police may submit it was inherent from the Court having found the prosecution case proved that the Judge rejected Ms Boulton’s explanation, I do not consider that to be sufficient.

[21]     I have concluded there was an error in the assessment of the evidence by not addressing the explanation provided by Ms Boulton. Had the Judge done so there is a reasonable possibility that some doubt may have arisen as to whether the prosecution’s circumstantial case was sufficient to prove the element of knowledge essential to proof of Ms Boulton’s possession of the shrubs upon which the police case rested.

[22]     I accept there are only two likely inferences to be drawn from the proven circumstances.  Either Ms Boulton took the trees and placed them at the rear of her property, or someone else took the trees and placed them at the back of her property without her knowledge. The latter scenario might be considered unlikely, but, in what is already an unusual case, in the absence of the Court addressing itself to that possibility, which in turn required it to specifically examine the defendant’s explanation, the conviction must be considered unsafe.

Conclusion

[23]     Accordingly, I allow the appeal and set aside the conviction. I remit the matter to the District Court and direct that a new trial be held.

Solicitors:

John K Fraser Law Limited, Invercargill

Preston Russell Law, Invercargill