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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Boulton v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 1474
Decision Date: 30 June 2016

CaseChat Overview and Summary

Lisa Boulton appealed against her conviction for stealing fourteen Griselinia littoralis shrubs from the complainant's property. The shrubs had been planted along the front border of the complainant's property and were found on Ms Boulton's property behind a shed. The District Court found Ms Boulton guilty, relying on the doctrine of recent possession, and the appeal was to the High Court. The central issue for the High Court was whether the District Court erred in failing to address Ms Boulton's explanation for the presence of the shrubs on her property.

The High Court held that in a case relying on circumstantial evidence, the trial court must explicitly address the defendant's explanation for their possession of the stolen goods. The court found that the District Court failed to adequately address Ms Boulton's explanation, which was her denial of knowledge about the shrubs being on her property. The court concluded that had the District Court properly considered this explanation, there was a reasonable possibility that doubt could have arisen as to whether the prosecution's case was sufficient to prove the element of knowledge essential to proof of Ms Boulton's possession of the shrubs. The High Court allowed the appeal, set aside the conviction, and ordered a new trial.

This decision highlights the importance of trial courts thoroughly examining and addressing the defendant's explanation for their possession of stolen goods when relying on circumstantial evidence. Failing to do so may result in an unsafe conviction that could be overturned on appeal.

Orders