Chansee v Police HC Wellington CRI 2010-485-133

[2011] NZHC 405

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-133

MICHAEL SIMON JAMES CHANSEE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 April 2011

Counsel:         S Iorns for Appellant

S C Carter for Respondent

Judgment:      6 April 2011

JUDGMENT OF RONALD YOUNG J

[1]      Mr Chansee  was  contracted  to  a  company  called  Doors 2000  Limited  to install garage doors and opening devices (door motors) at the directions of the local agent of Doors 2000, Mr Knight.  Doors 2000’s stock was delivered to Mr Chansee’s house for storage.  After Mr Chansee installed a garage door the customer would be invoiced by Doors 2000 for the completed work.   Mr Chansee, in turn, would be

paid by the company for installations completed by the 20th of the month following.

MICHAEL SIMON JAMES CHANSEE V NEW ZEALAND POLICE HC WN CRI 2010-485-133 6 April 2011

[2]      In  March 2008  the  contractual  arrangements  between  Doors 2000  and Mr Chansee  ended.   A number  of  jobs  were  then  incomplete.    Mr Knight  took possession of the stock held by the appellant.  After a stock check he found that an aluminium  garage  door,  and  16 garage  door  motors  were  missing.    Further,  an installation undertaken by Mr Chansee had been paid directly to him.  The allegation was that he had not accounted to the company for that payment.

[3]      At summary trial, Mr Chansee was convicted of three offences charged under s 220 of the Crimes Act 1961 (theft by a person in a special relationship).   These three charges related firstly to the aluminium garage door, secondly to the 16 garage door motors, and thirdly to the money received from the installation of a garage door.

[4]      Convictions were entered only after the District Court Judge, giving notice and inviting submissions, amended two of the informations pursuant to s 43 of the Summary Proceedings Act 1957.

[5]     The first ground of appeal challenges the Judge’s amendment of the informations.  The other grounds of appeal relate directly to the three convictions.  It is preferable, therefore, to consider these grounds of appeal in the context of the evidence in support of the alleged offending.

Amended Informations

[6]      On 24 June the Judge released a minute which provided:

[1]       At the end of the police case I heard submissions related to the sufficiency and accuracy of Informations ending 2549 and 2550.  Mr Iorns submitted that it was necessary for the Information to specify whether the charge was a failing to account or a wrongful and intentional dealing.  Both Informations describe an obligation to account to another person but then describe  the  wrongful  act  as  an  intentional  dealing.    Pursuant  to  s 43

Summary Proceedings Act, I intend to amend the Informations.  2549 will be amended by deleting the words “an intentionally dealt with the property” and adding   the   words   “and   intentionally   failed   to   account   to   the   said Greg Wilshire”.     I  intend  to  amend  2550  by  deleting  the  words  “an intentionally dealt with the property otherwise than” and adding the words “intentionally failed to account to the said Greg Wilshire”.

[2]       Relying on the power in s 43 of the Summary Proceedings Act and the Court of Appeal in Jones v Police [1998] 1 NZLR, I give notice of my intention to amend.   If either the defendant or informant seek to be heard with relation to that amendment they are to give notice to the Registrar within 7 days.

[7]      The appellant’s submissions is that it was unfair to amend the informations given  the  informant  had  21  months  from  charge  to  trial  to  ensure  that  the informations were accurate.  He said that the Court ought not to cure defects in the prosecution case where it has been poorly conducted.

[8]      Further,  counsel pointed out that there was significant unexplained delay between the investigation and the laying of the information.  He submitted that it was not in the interests of justice to amend the information.

[9]      As the prosecution said an accused person should not avoid a conviction on the basis of a technicality unless prejudice can be shown.

[10]     The power given under s 43 of the Summary Proceedings Act is wide.   It provides:

43       Amendment of information where defendant appears

(1)       Subject  to  the  succeeding  provisions  of  this  section,  where  the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.

(2)       Without   limiting   the   generality   of   the   powers   conferred   by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part 5 of this Act applies.

[11]     These  points  can  be  made.     Firstly,  the  amendments  were  essentially technical, to remedy an inconsistency.   They did not change the charges to new offences nor alter the case that the appellant had to meet.

[12]   Before  amendment  the  informations  before  amendment  were  not unintelligible.  It was clear, if somewhat muddled, what the allegations against the appellant were.  The appellant did not claim that he was not fairly informed of the substance of the charges.

[13]     I am also conscious that s 204 of the Summary Proceedings Act provides that no information is to be quashed or set aside by reason only of a defect unless the Court is satisfied a miscarriage of justice has occurred.  Without any miscarriage of justice,  in  my  view,  it  was  clearly  appropriate  for  the  Judge  to  amend  the informations as she did.  I reject this ground of appeal.

[14]     The other grounds of appeal essentially relate directly to the convictions and I

consider them when considering the evidence in relation to each.

(a)      Failure to account for 16 door motors (CRW 2550)

[15]     On two occasions during her judgment the Judge incorrectly referred to ten door motors rather than 16, the correct number.   I note, however, the Judge did identify the correct number in the early part of her judgment.   Counsel for the appellant described this as a fundamental error of fact.  I reject that claim.  This was either a typographical error or a slip.  No appeal point, in my view, arises from this.

[16]     The appellant submits that even after its amendment this information was “flawed” in the sense that the prosecution intended to allege the theft of 16 garage door motors. The information alleged 16 door and 16 door motors had been stolen.

[17]     The hearing was conducted based on an allegation that 16 door motors had been  improperly  dealt  with.    Further,  s 204  of  the  Summary  Proceedings  Act prohibits the quashing of such an information unless a miscarriage has occurred. There was no miscarriage here.  The appellant was clear about the substance of the allegation he faced.  I reject this appeal point.  No amendment of the information is required.

[18]     Counsel  for  the  appellant  submitted  that  because  Mr Selich’s  evidence “related solely to a matter that was not covered by any information it ought to be entirely disregarded”.  Further, counsel complained that while Mr Selich was called to give evidence it was his wife who had dealt with the appellant.

[19]     It was common ground at the hearing that the appellant installed a door motor at Mr Selich’s property and was paid to do so.  As the Crown identified the issue in dispute was whether the motor installed was one supplied by Doors 2000 or whether, as  claimed  by the  appellant,  it  was  a  motor  made  up  from  spare  parts  by the appellant.

[20]     The Judge identified that as the dispute.   She relied upon the professional opinion of Mr Knight that while it was not impossible to remake a motor from various parts, it was improbable.  She was entitled to accept Mr Knight’s evidence on this point.

[21]     Mr Selich’s  evidence  was  relevant  because  the  Judge  accepted  that  the appellant had installed a door motor supplied by Doors 2000 and had been paid himself for the installation rather than  the client paying Doors 2000.   This was obviously relevant to the information which led to the failure to account for the

16 door motors.

[22]     I accept Mr Selich’s evidence did not establish that this transaction related to the 16 door motors which were the subject matter of the charge.  The installation of this  door  motor  was  before  the  16 door  motors  were  delivered  to  Mr Chansee. However,  this  was  evidence  that  Mr Chansee  was  prepared  to  sell  door motors belonging  to  Doors 2000  outside  of  their  contractual  arrangements.    This  was admissible evidence either as part of the broader factual matrix or as propensity evidence (Evidence Act 2006, s 43). This evidence had a clear probative value given it showed the appellant’s preparedness to act outside his contractual arrangements with Doors 2000 as the prosecution alleged in informations relating to the motors and the door.  There was no real prejudice to the appellant in this evidence other than the legitimate prejudice that it linked him to the alleged offending.   I reject this appeal point.

[23]     Finally, the appellant submitted that there was insufficient evidence from which it could be concluded that the offence had been proved beyond reasonable doubt.  The appellant said that the evidence of the supply of doors and door motors by the company to Mr Chansee was in such a state of confusion that the Judge could not have been satisfied that 16 door motors were missing and therefore stolen.

[24]     The documentary evidence from both the company and the transport firm who  delivered  the  products  to  Mr Chansee  did  not  establish  clear  numbers  of products supplied.  Nor was there clear evidence of legitimate installations.  Thus, the Judge could not have been satisfied that 16 nor indeed any number of motors were missing based solely on the documentary evidence.  Thus, if the prosecution case had relied upon the record keeping by the company and the delivery company then it could not have expected to accurately establish how many door motors were unaccounted for.

[25]     However, Mr Knight who had undertaken the assessment that 16 door motors were missing explained how he had done so in his evidence.  The Judge summarised his evidence when she asked:

Q:      Mr  Knight,  I’m  sorry  just  let  me  get  that  clear.    The  day  you discovered that James had got another job you tell me that there were 46 doors ordered and uninstalled of which 20 were waiting motors being ordered later because of the construction lag, 10 you got from James’s garage and that led you to believe there was 16 outstanding?

A :       Correct.

[26]     And further, Mr Knight said:

A:       Yes  it  took  me  a  few  days  to  work it  all  out  because  I had  to physically go around all the building sites that we had on the go and work out what jobs had motors in and what jobs didn’t and do an account with the help of the Golden Homes foreman and we worked out exactly how many motors we needed to complete all of the jobs that were in progress and we worked out how many motors we had and how many would have been on back order and there was exactly

16 missing.

[27]       The Judge was entitled to rely upon the evidence  of Mr Knight.   This established, as the Judge accepted, the 16 door motors were missing.

[28]     Further, the Judge was entitled to accept the evidence of Mr Selich which established that the defendant had been selling door motors.  This evidence together with the other circumstantial evidence would have been sufficient to satisfy the essential elements of the charge.

(b)      Aluminium Door

[29]     Here, the appellant challenges the conviction relating to the aluminium door on the basis that the inference from the evidence could not have satisfied the Court that the aluminium door had ever been delivered.  However the Judge was entitled to accept Mr Knight’s evidence as credible.   She was entitled to accept Mr Knight’s claim that he saw the door on numerous occasions when he visited the appellant’s home.

[30]     In  those  circumstances,  given  the  door  had  disappeared,  the  Judge  was entitled to infer Mr Chansee dealt with it in a way which was inconsistent with the company’s ownership and that the elements of the charge had been proved.

(c)      Failing to account for proceeds of sale

[31]     The third challenge alleged the appellant had failed to account to Doors 2000 for the proceeds of a door and motor installed for Mr Bird

[32]     Mr Chansee claimed that he was owed money by the company.   However, both the appellant and the Crown accept that whether Mr Chansee was owed money is a red herring in this case.  The appellant did not assert that he had some right to sell any of the products or keep the proceeds for any door motor installed to off-set money he was owed.

[33]     In those circumstances this evidence is irrelevant.  The Judge was entitled to accept that the door and motor installed for Mr Bird and paid for by Mr Bird to Mr Chansee was money Mr Chansee had to account to Doors 2000.  His failure to do so was evidence on which the appellant was properly convicted.

[34]     For  the  reasons  given,  therefore,  the  appeal  against  conviction  will  be

dismissed.

Ronald Young J

Solicitors:

S Iorns, Barrister, PO Box 47 074, Trentham, Upper Hutt 5018, email:  [email protected]

S C Carter, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]