C v Police HC Christchurch CRI 2008-409-36

[2008] NZHC 352

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-36

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 March 2008

Counsel:         A J Bailey for appellant

S C Poore for respondent

Judgment:      19 March 2008 at 1.00 pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 1.00pm on the 19th day of March 2008.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The  appellant  appeals  against  his  conviction  in  the  District  Court  at Christchurch on a charge of theft of a computer hard drive valued at $25.00.  He was convicted following a summary trial.

[2]      The complainant was the owner of a pizza business in Rangiora.  In 2006, the business  had  changed  to  the  extent  of  becoming  a  franchise  operation.    When

running the earlier business the complainant kept all of the accounting and other

C V NZ POLICE HC CHCH CRI 2008-409-36  19 March 2008

financial records of the business on a personal computer which she had acquired when purchasing the business.   She used the software package know as MYOB, which  was  loaded  onto  the  computer  and  she  also  had  the  software  on  CD. Following the change to the franchise operation different accounting systems were used,  and  that  computer  was  stored  on the  premises  unused.    The  complainant intended to keep the data on it, relating to the previous business, so that she could retrieve that data in order to prepare tax returns at the end of the year.

[3]      The appellant was employed in the pizza business and his role was described as  manager  of  the  store.    The  evidence  of  Mr  Clark,  another  employee  of  the business, was that one evening he had seen the appellant dismantling the complainant’s PC and said that he clearly saw the appellant remove what he was later able to identify as the hard drive from the machine, put it in his bag and take it home in his bag that evening.  The appellant was subsequently dismissed and shortly afterwards the complainant asked Mr Clark to bring the computer to her.   That prompted Mr Clark to tell her that he had seen the defendant taking the hard drive and he suggested to the complainant that the computer  would be useless.   The complainant then confirmed that for herself.  The complaint gave evidence that she never gave the appellant any authority to interfere with the computer or to remove any parts from it.   The consequences for the complaint were that she had to reconstruct her accounting records, and needed an extension of time from Inland Revenue to do this.

[4]      The appellant was interviewed by police and made a statement, which was produced in evidence.   He admitted that he had removed the hard drive from the computer and said that he put the hard drive into another computer on the premises and left it there.  He also claimed that he had the authority of the complainant to do this.

[5]      The judge noted that the defendant elected not to give evidence.  He noted that what the defendant said in the statement was inconsistent with the evidence that he had heard and he said:

[13]     As  I have  said,  the  defendant  elected  not  to  give  evidence  and therefore did not confirm on oath any of what he said in his statement to

Detective Brand.   Clearly what the defendant said in that statement is inconsistent with what I heard from the witnesses who did give evidence before me.

[14]      I have no hesitation in preferring the sworn evidence of witnesses to the unsworn statement of the defendant.   Indeed, I have no difficulty in putting entirely to one side the explanation given by the defendant in his statement to Detective Brand.

[15]      I am satisfied beyond reasonable doubt of the necessary elements of this offence, namely that the computer hard drive was the property of Ms Van Der Broek, that the defendant had no authority to deal with that hard drive, that he did deal with it in a manner inconsistent with Ms Van Der Broek’s ownership of it by removing it from the computer and not returning it.

[16]      I therefore find the charge as a whole proved beyond reasonable doubt and the defendant is convicted.

[6]      The notice of appeal raises three grounds:

a)        The  judge’s  findings  as  to  credibility  were  not  supported  by  the evidence;

b)       The judge misdirected himself with respect to the burden of proof;

c)       The conviction was not supported by the evidence.

[7]      I  deal  first  with  the  second  ground  of  appeal,  namely,  that  the  judge misdirected himself with respect to the burden of proof.  Mr Bailey for the appellant submits that the judge’s remarks at paras [13] and [14] (set out above) indicate that the judge effectively placed an onus on the defendant.  I do not agree.  The judge had evidence from the prosecution witnesses.  Against that, there was no sworn evidence from the appellant, and the unsworn statement was inconsistent with the evidence from the prosecution witnesses.  The judge was required to, and did, make findings as to the credibility of the prosecution  evidence.    He  was  entitled  to  take into account, and did, the appellant’s unsworn statement. The weight to be attributed to it was a matter for him.  He preferred the evidence of the prosecution witnesses to the appellant’s unsworn statement.  That was a credibility finding that he was entitled to make (subject to the other grounds of appeal).   If, as he did, he believed the prosecution witnesses, the prosecution had met the onus of proof on it.  The judge

did not impose any burden of proof upon the appellant.   Paragraph [15] of his judgment clearly indicates that he recognised that the onus was on the Crown.  His acceptance of the evidence of the Crown witnesses met that onus.   The second ground of appeal must fail.

[8]      The  other  two  grounds  of appeal  both  involve  challenges  to  the  judge’s findings made in the light of the evidence which he heard.  It should be unnecessary to re-iterate the basic general proposition as to an appeal against findings of fact, namely that an appellant court cannot reverse a factual finding unless compelling grounds for doing so are shown.  The comments of Thomas J in Rae v International Insurance Brokers (Nelson Marlborough Limited) [1998] 3 NZLR 190 as to the reasons for that are well known. He referred to the manifest advantages possessed by the trial judge in determining questions of fact where necessary their credibility, and said (at p199):

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to “second-guess” a trial Judge’s findings of facts when it does not share those advantages. Exceptional caution in departing from the trial Judge’s findings of fact are therefore regarded as imperative.

[9]      On this appeal, Mr Bailey submitted that there were several inconsistent aspects  of  the  evidence  of  the  prosecution  witnesses  which  do  not  support  the judge’s implicit finding that those witnesses were credible and that they could be relied upon.  Counsel submitted that the complainant’s evidence as to the version of MYOB which was on the computer, and the whereabouts of the MYOB disks, cast doubt upon  the  credibility of  the  complainant’s  evidence.    He  also  referred,  in challenging the judge’s findings as to credibility, to evidence of an insurance claim which had been made on behalf of the pizza business, evidence as to the amount of money kept in the safe, and evidence relating to whether or not the appellant habitually carried a bag to work each day.   It is clear from the reading of the transcript that the judge had some difficulty with the relevance of some of these matters.  I too have difficulty in ascertaining the relevance of some of the matters referred to.  They were not directly relevant to the factual issues which the court was required to determine in deciding whether the charge was proven.  Their relevance as matters which go to the credibility of the witnesses is also questionable.   It is not

clear why the version of MYOB which is claimed to be on the computer hard drive which was stolen has any relevance to that charge.  Some uncertainty on the part of the complainant as to the precise circumstances relating to that soft ware is understandable, particularly as it had marginal relevance to the issues before the court.   It certainly does not demonstrate that the complainant’s evidence, on the essential elements of the charge, was manifestly not credible, so as to bring the case within that rare category of cases where the appellate court may disturb a finding of credibility made by the trial judge.  Similarly, the alleged inconsistencies in evidence as to whether or not the appellant was in the habit of taking a bag with him to work cannot be said to so undermine the credibility of the Crown witnesses that this court should interfere.  As to the insurance claim, and the amount of money kept in the safe, counsel had at trial sought to rely upon a document which was never formally produced in evidence, and whose provenance must be regarded as uncertain.  Those issues had no direct relevance to the charge before the court.  These matters do not provide any basis on which this court could interfere with the judge’s findings of credibility.

[10]     For these reasons, the first ground of appeal must fail.  It follows from that conclusion that the third ground, namely that the conviction was not supported by the evidence, must also fail.

[11]     For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:         A J Bailey, Barrister, Christchurch for appellant

Raymond Donnelly & Co., Christchurch for respondent