D v Police HC Rotorua CRI 2006-463-57

[2006] NZHC 810

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-000057

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 July 2006

Appearances: Ms Foley for Appellant

Ms Bailey for Respondent

Judgment:      13 July 2006

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

The appeal is allowed and the conviction quashed.

REASONS

[1]      The appellant, D  , appeals against her conviction on one charge of receiving a rug.

[2]      The circumstances of the offence, in the broadest terms, are that the appellant was contacted by a person she knew through children being at school together.  He

said he had a rug for sale.  She went and observed the rug rolled out on the back

D V POLICE HC ROT CRI 2006-463-000057  13 July 2006

lawn, and purchased it for $500.  In fact, the rug had been stolen from an apartment development and was valued at around $5,000.

[3]      The learned District Court Judge, in his decision, accepted that there was no evidence to show that the appellant knew that the rug was stolen.  Rather he relied on recklessness which the appellant accepts he correctly defined.

[4]      The Judge considered a number of circumstances to which I will turn shortly, and considered them to be, almost without exception, neutral in the context of the case.  He continued, however, at [10]:

[10]      Even accepting, as I do, that one might have mistook this rug as being a cheap possibly coming from the Warehouse and certainly not worth the nearly $5,000 that it cost, I regard it as strange in the extreme if a person is taken to an address to buy an item which is going to cost her several hundred dollars, that at that very address there is a go-between, between her and the alleged owner, and I regret to say in her case that frankly is the rock in which she flounders [sic] in this case.  Armed with the knowledge that the owner was there, it behoved her at least to speak to the owner, who at that time  was  no  more  than  a  few  metres  away,  albeit  inside  the  house. Therefore, I do find that the prosecution in this case has proved beyond reasonable doubt that she was reckless in the way in which she went about to buy this item, reckless as to whether or not it had been stolen or had been obtained by a crime which it assuredly was.

[5]      At [5] the Judge referred to the test of recklessness as being “foresight of dangerous  consequences  that  could  well  happen  together  with  an  intention  to continue the course of conduct regardless of risk”.   Ms Foley, for the appellant, accepts that is the application of the correct test, but said in all of the circumstances of this particular case, when they are analysed in detail, recklessness is not made out as the Judge found.

[6]      The Judge also referred, and it is a good starting point, to the passage in Adams on Criminal Law at CA246.05, cited in submissions by Ms Foley today. What that paragraph sets out is that the circumstances commonly relied upon as evidence of guilty knowledge include "purchase at a gross under value, secrecy in the receiving, receipt at an unusual time or place or in an unusual way, concealment of the goods, removal of identification marks or lying statements as to the source of the goods and the date of the acquisition".

[7] Before turning to those factors that were addressed by counsel it is appropriate also to refer to Ms Foley’s response to the Judge’s finding at [10]. She referred to the passage of evidence at page 21 line 21 to page 22 line 11. I will not set it out in this judgment, but it is set out in the submissions. On the basis of that evidence, she submitted that the evidence could only give rise to an inference of recklessness if the Judge had first concluded the appellant had developed a forethought of dangerous consequences and proceeded regardless. It is self-evident on a reading of the judgment that the learned Judge stated no such conclusion and that, on itself, would be enough to dispose of this appeal. However, it is proper to go through the matters raised in fairness to the Judge.

[8]      Firstly, purchase at an under value.  It is clear that this was an expensive rug. But it is also clear that the appellant and her witness gave evidence that it was similar to a rug that a friend had bought from the Warehouse for about $800, and the $500 she considered was an acceptable price.   The Judge accepted that one might have mistaken this rug as being a cheap rug, possibly coming from the Warehouse, and certainly not worth nearly the $5,000 that it cost.  It follows in this case there is no purchase at gross under value established within the mind of the appellant to lead to guilty knowledge.

[9]      The second is the receipt at an unusual time or place, or in an unusual way or concealment of the goods.   When the appellant arrived at the house the rug was rolled out on the back lawn of the property.  There was evidence from witnesses to say it was on a very busy street and there was nothing being done to conceal it in any way at all.  The Judge, himself, stated “On balance I think there is some force in that, albeit not a huge amount of force, in that it was not displayed on the front lawn or immediately adjacent to the road”.  That in itself at most is neutral.  The reality is there is nothing on the evidence to suggest the rug was being concealed in any way.

[10]     Removal of identification marks.  It is plain that the wrapping paper had been removed and when the appellant viewed the rug it was laid on the back lawn and there is no evidence of the wrapping paper being visible to her.  The Judge made no comment on it.

[11]     Lying statements as to the source of the goods and the date of acquisition. There has simply been no lying statements made by the appellant.  She was open to the police.  The appellant, the prosecution witness Mr Jack, and the defence witness, Mr Bryant, all gave evidence she was told the rug was being sold because the mate of the seller’s had come down from Auckland had owned the rug for a month and needed to sell it for some cash.  Mr Jack, indeed, agreed that he did not want to do anything to jeopardise the carpet being removed and he did not let on to the appellant that it was stolen.

[12]     There  are  also  a  number  of  other  matters.     In  cross-examination  the prosecution made an issue as to why the appellant did not ask for documentation in relation to the rug, or a receipt.  Her evidence was that she did not understand any documentation existed to prove ownership of something like a rug.   I agree with Ms Foley’s submission that it is commonsense that a rug does not have a certificate or a proof of ownership as a house or a vehicle does.  Again, this is a neutral matter and the Judge did not comment on it.

[13]     The appellant’s behaviour when the police arrived. – The Crown submits this is  consistent  with  not  having guilty knowledge.    It  seems  to  me  clear  that  the appellant did not appreciate the dangerous consequence and continued regardless when one considers her attitude when the police arrived at her house to inquire about the rug.   There was some dispute as to whether or not the police had a search warrant, but as far as the appellant was concerned it was irrelevant.  She was happy for the police to come in and make inquiries.  She said that she needed to know as well when she was given the information.  She volunteered to the police she believed the rug was similar to one a girlfriend had bought from the Warehouse, something that the Judge accepted.   She suggested that the police phone the seller to get an explanation as to the purchase.  I agree with Ms Foley it is difficult to accept that a person with guilty knowledge would volunteer a seller to exculpate her.   There is nothing in her behaviour when spoken to by the police that is consistent with having foresight of dangerous consequences.

[14]     Finally there is the issue of discussions with the owner.  That is the matter upon which the Judge was satisfied that recklessness had been established.  He said

that was because the person was present and could have been readily approached. The reality is that there was a person there called “Charlie”.  He came outside to ask for a light for a cigarette, apparently seeing the parties, that is Mr Habib and Ms Deans sitting on the rolled out rug outside.  He went inside.  After a short time Mr Habib went inside.   After talking about the purchase price the appellant, not unnaturally, assumed that was to talk to the person she thought was the owner.  It is reasonable to infer from that the appellant believed the assumed owner agreed with the price of sale.  That seems to me a clearly available inference.  It is an inference as equally  available  as  the  one  drawn  by  the  District  Court  Judge.    Where  two inferences  are  available,  of  equal  strength,  then  the  one  most  favourable  to  an accused person is the one to be drawn.  However, in the circumstances of the case it seems to me that the inference the appellant assumed the seller was going inside to clear the sale with the person that she properly assumed was the owner is a much stronger inference than the one drawn by the learned District Court Judge.

[15]     It follows, when one considers all of those circumstances, there was nothing to put the appellant on notice that there were dangerous consequences and that she determined to continue on regardless.  That is not withstanding Ms Bailey’s strong submission  that  the  overall  circumstances  do  point  to  her  being  reckless.    An analysis of the evidence, unfortunately, does not, in my view, lead to that conclusion. In my view the decision of the learned District Court Judge cannot be supported by the evidence.  While he set out the correct principle of law, it has not been applied correctly to the facts.

[16]     It follows that the conviction must be quashed.

[17]     Given the small fine that was imposed and the time that has past it does not seem appropriate for me to order a new trial.