Dungey v Police HC Timaru CRI-2011-476-000007

[2011] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2011-476-000007

BETWEEN  NICHOLAS GRAHAM DUNGEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 September 2011

Appearances: K B Campbell for Appellant

N M Willcocks for Respondent

Judgment:      15 September 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, PO Box 244, Timaru 7490

Dean & Associates, 20 Wear Street, Oamaru 9400

DUNGEY V NEW ZEALAND POLICE HC TIM CRI-2011-476-000007 15 September 2011

[1]      The appellant was convicted in the District Court at Oamaru on 21 July 2011 by Judge Russell on one charge of theft of a Sony Ericsson cellular phone.   He appeals against conviction on the basis there was a fundamental flaw in the prosecution case and the Judge should have been left with a reasonable doubt as to whether the prosecution had proved their case.

[2]      The appellant was employed on a dairy farm. The owner of the cell phone, the complainant, was the farm manager.   On the morning of 24 January 2011 the complainant, the appellant and another worker, Mr Olsen, were working at or near the milking shed.  The complainant said he left his Sony Ericsson cell phone on the stereo in the milking shed.  Mr Olsen confirmed that that was the appellant’s practice and that he saw it there that day.  The complainant then went for breakfast at about

8.15 or 8.30 a.m.  Mr Olsen said that about quarter of an hour after the complainant had gone for breakfast he also went for breakfast.   When Mr Olsen left to go for breakfast the only person left in the vicinity of the milking shed was the appellant. He  was  water  blasting  inside  the  shed.    When  the  complainant  returned  from breakfast at around 9.30 a.m. he could not find his cell phone.  It was missing.  By that stage the appellant had left the shed.  After searching for the phone and looking to see if it had fallen off the stereo the complainant then used his wife’s cell phone to text the appellant to ask about the phone.  He asked the appellant if he had seen the phone.  The appellant’s response was, “What, has he lost it on the farm?”  And then in response to a further text, “But I was working in that area and I did not see it”.

[3]      The complainant went to Telecom and spoke to them to find out what he could do about it.  He was apparently advised that they could put a stop on the use of the phone but he was told to leave it so that if the phone was used they could have a chance of finding out where the phone was.  After two days and a further discussion with Telecom he realised the phone had not been lost.  He reported the matter to the police. The police spoke to the appellant about the matter.

[4]      The police obtained the appellant’s personal details but it appears there was

no further statement made by the appellant to the police.   One of the details the

police officer obtained from the appellant was the cell phone number used by the appellant 027 8573283.  A search by a Telecom employee for the SIM card relating to the phone number 027 8573283 revealed that on 24 January 2011, the day the complainant’s cell phone went missing, the appellant’s SIM card relating to his cell phone number was used in a Sony Ericsson W508 phone at 10.37, 12.29 and 12.40. The same SIM card relating to that number was used on the same day, in another phone, a ZTE R109 model as well.

[5]      At the conclusion of the police case in the District Court counsel submitted there was no case to answer.  He submitted there was a fatal flaw in that the Telecom evidence was that the appellant’s SIM card had been used in a Sony Ericsson W508 but there was no link between that and the missing cell phone.  The Judge rejected the submission of no case to answer.  The appellant chose not to give evidence.  The Judge ultimately found the charge proven.   While the Judge accepted that, taken individually the circumstances disclosed by the evidence might have left him with a reasonable doubt, when  taken collectively he considered the charge was proved beyond reasonable doubt.

[6]      In support of the appeal Mr Campbell has essentially repeated the no case to answer submission.   He submits there was a fundamental flaw in the police case, adopted by the Judge, in that there was no evidential link between the missing cell phone  and  the  appellant.     He  emphasised  that  there  was  no  evidence  the complainant’s cell phone was a Sony Ericsson 508 model.  He submitted that at best the prosecution case was one of suspicion.   He noted that the police had failed to make inquiries of any other people who may have taken the cell phone.  In particular no inquiries were made of a Filipino employee named Mark who lived in a shed about 20 to 30 metres away from the milking shed.   He submitted that suspicion, plus suspicion, only equals suspicion and the Court should grant the appeal.

[7]      Ms Willcocks submitted that on the information before the Judge, he was entitled to take the view that there was sufficient evidence to satisfy the requirement that the charge was proved beyond reasonable doubt.

[8]      As a circumstantial case the ultimate issue for the Judge was whether the evidence, taken as a whole, established beyond reasonable doubt that the appellant had taken the complainant’s cell phone.

[9]      While Mr Campbell is correct in his submission that there may be gaps in the police case and further inquiries could possibly have been made, at the end of the day the issue is whether such evidence that there was before the District Court Judge (and is before this Court) was sufficient for the District Court Judge to properly have found the charge proven beyond reasonable doubt.   As counsel are well aware, circumstantial  cases  such as  this  depend  on  the Court  drawing  inferences  from proven evidence.   The logic underpinning the case is that either the appellant is guilty or is unfortunately the victim of an unlikely set of coincidences.

[10]     In the present case the following factors are material.  They are the evidence established at District Court hearing:

the complainant owned a Sony Ericsson cell phone;

thecomplainant left the cell phone on a stereo in the milking shed on the morning of 24 January;

that he was absent from the milking shed for approximately three quarters of

an hour to an hour;

that at the time he left the milking shed the only other people about the shed

were Mr Olsen and the appellant;

Mr  Olsen  also  left  the  shed  about  quarter  of  an  hour  later  after  the

complainant;

at that time the only person in the shed was the appellant;

when the complainant returned at about 9.30 a.m., probably approximately three quarters of an hour after Mr Olsen had left, the cell phone was missing

and the appellant was gone;

the cell phone was not lost.  It was not found in the shed after a search.  It had

been taken;

although Mr Olsen’s children lived on the farm with him they had gone to

school;

the only other person in the vicinity of the shed, the Filipino Mark, may not have been on the property as it was his day off.  He may have been asleep in his shed.  He had no reason to come to the milking shed and was not seen that

day at or in the milking shed;

the appellant’s SIM card, as identified by the number relating to that, was used   in  a  Sony  Ericsson  phone  at  about  10.37  a.m.  on  the  day  the

completion’s Sony Ericsson W508 phone went missing;

on the prosecution case the appellant’s SIM card was used in a Sony Ericsson phone  within  an  hour  or  an  hour  and  a  half  of  the  complainant’s  Sony

Ericsson phone going missing.

[11]     I accept Mr Campbell’s submission that there is no direct evidence that the Sony Ericsson phone the appellant’s SIM card was used in was the Sony Ericsson belonging to the complainant, and there is no evidence that the complainant’s Sony Ericsson phone was a W508 phone, (reference at one stage was made to it as a Sony Ericsson Walkman).   But considering the limited opportunity for the phone to be taken, the appellant being in the vicinity of the phone at that time, (and being the last person seen alone in the milking shed in the vicinity of the phone), then the coincidence of the complainant’s phone being a Sony Ericsson model and that the appellant’s SIM card being used in a Sony Ericsson within an hour to an hour and a half of the phone going missing, does, taken in totality, support the conclusion by the

District Court Judge that the appellant had taken the complainant’s phone to the required standard of beyond reasonable doubt.

[12]     For those reasons the appeal must be dismissed.

Venning J