F v Police HC Auckland Cri-2007-443-10

[2008] NZHC 869

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2007-443-000010

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 May 2008

Appearances: T Sutcliffe for the Appellant

C E Clark for the Respondent

Judgment:      10 June 2008

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 10 June 2008 at 12.00 noon, pursuant to

r 540(4) of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     T Sutcliffe P O Box 19021 Hamilton for the Appellant

Auld Brewer Mazengarb and McEwen P O Box 738 New Plymouth for the

Respondent

F V POLICE HC NWP CRI-2007-443-000010  10 June 2008

[1]      This is an appeal against a conviction of theft entered on 8 June 2007 in the District Court at New Plymouth after a defended hearing on 28 May 2007.  The item of property that the appellant was found to have stolen was a moveable truck deck known as a tipper deck.

[2]      The appellant is in the business of motor transport.  As part of this business he contracts with persons to whom he sells trucks and moveable interchangeable decks for use on the trucks.  These persons then work as owner-drivers of the trucks in a contract for services with the appellant.   The usual arrangement is for the appellant to sell an owner-driver a truck, as well as two interchangeable decks, these being a spreader deck and a tipper deck.

[3]      The complainant is a former contractor/owner-driver for the appellant.  This arrangement did not prove to be viable for the complainant and ultimately his truck was repossessed by the finance company which had assisted him to enter into the arrangement.  The complainant alleges that he had left the tipper deck that went with the truck under this arrangement at the appellant’s yard.  There was nothing unusual about this arrangement and it seems the owner-drivers regularly left their equipment, when not in use, at the appellant’s yard.  Some time after his truck was repossessed the complainant contacted the appellant seeking information about the tipper deck and access to it.  He was told it had been sold.  The complainant complained to the Police and as a result of this the appellant was charged with theft.

[4]      The complainant has maintained all along that the tipper deck that he left at the appellant’s yard was the tipper deck initially supplied along with the truck and spreader deck.   The appellant has another explanation.   His explanation is that he originally supplied a tipper deck with the truck, but that tipper deck required repair and so he later supplied his own tipper deck to the complainant for use with the truck.  It is this tipper deck that the appellant says was left in his yard and which has at all times been the appellant’s property.  Consequently, he was free to dispose of it as he wished.

[5]      It seems that no identifying marks were made on the interchangeable decks supplied with the trucks, nor were any written records kept of who had received

which deck.  The appellant has contracts with a number of owner-drivers and under those arrangements he has supplied a number of tipper decks.   It seems that there may well be little to distinguish one tipper deck from another.

[6]      However, the tipper deck that is the subject of the charge appears to have one distinguishing feature.  That is the mechanism that is used to remove it from the tray of the truck.  It is removed by use of a system that uses a strop to the weight of the deck to lift it from the truck and down on to blocks.   The appellant says that the tipper deck he originally sold to the complainant could be removed by another system, which the appellant had designed.   That system involved items known as tipper legs or landing legs being attached to the tipper deck, which could then be jacked slightly up from the truck tray so that the truck could simply be driven off leaving the tipper deck standing on the landing legs.   This system was the better system for removing tipper decks.   However, in the case of the subject deck, the appellant says that he had not got around to affixing the landing leg system onto his own deck and so it was left with the earlier more cumbersome system of using a strop and blocks.

[7]      When the Police began their investigations they interviewed the appellant on two separate occasions: 15 January 2007 and 22 January 2007.  The Police Officer who interviewed the appellant made written notes of the interviews at the time they occurred but she did not keep these notes.  The only record of the interviews is a Police  job  sheet  that  the  Police  Officer  typed  up  from  her  written  notes  on

23 January 2007.  The job sheet summarises interviews the Police Officer carried out for the purpose of the theft investigation.  The job sheet records nothing about the appellant raising with the Police Officer the landing leg system and how this might distinguish his tipper deck from the complainant’s.

[8]      The appellant maintains that he told the Police Officer in the course of both interviews that the tipper deck that was being used by the complainant in the time leading up to the repossession of the truck was the appellant’s tipper deck.   The appellant  also  maintains  that  he  told  the  Police  Officer  about  the  two  different systems for removing tipper decks and that this was a distinguishing feature to

differentiate the deck that he had initially supplied to the complainant from the one which was the subject of the theft charge.

[9]      In the course of the defended hearing the Police Officer denied that there had been any discussion about different systems for removing tipper decks and the use of landing legs as part of one such system.   The Police Officer was asked in cross- examination more than once if the appellant had spoken to her about landing legs and   the   help   they  could   provide  to   distinguish   his   tipper   deck   from   the complainant’s.  The Police Officer said there had never been any such discussion and then said:

I can confidently say we never spoke about landing legs.  In fact, I could not even have told you before Court started what they were.

She then repeated this statement in answer to another question, saying “we never discussed landing legs.  I didn’t know, I don’t know what they are …”.

[10]     Unbeknown to the Police Officer at the time, during the second interview, which was at the appellant’s property, the appellant made a tape-recording of this interview.   The transcript of the tape-recorded telephone interview of 22 January

2007 seems not to have been available at the defended hearing.   It has become available for the purposes of the appeal and the Crown has not opposed me taking notice of it.   The recording was made at the time of the interview on 22 January

2007.   This means it is evidence that could have been transcribed and could have been available at the defended hearing.  The admission of further evidence on appeal that was evidence available at the time of the first hearing is rare.   However, the Crown is content for me to take the transcript into account.   The Crown has not challenged  the  accuracy  of  the  transcript.     The  original  recording  has  been considered by the Police Complaints Authority, which I understand is now investigating a complaint into the Police Officer’s failure to record the interviews properly and to maintain proper records of them.  In view of the Crown’s attitude, which I consider is the responsible attitude to take to the admission of this evidence, I propose to take the transcript into account without first satisfying myself in accordance with the usual tests for the admission of such evidence.

[11]     The transcript of the tape-recording reveals that on at least three occasions during   the   interview   on   22   January   2007,   the   appellant   explained   to   the Police Officer  the  two  different  systems  for  removing  tipper  deck  trays.    The appellant also explained that the initial tipper deck system provided to the complainant used the landing legs for removing the tipper deck whereas the tipper deck that was the subject of the theft charge used a different system.

[12]     The Police job sheet of 23 January 2007 also records the Police Officer’s summary of her interview of the complainant’s mother.  In that part of the job sheet the  Officer  has  recorded  the  mother  as  saying  “the  tipper  was  left  on  legs  in Rodney’s back yard”.   The appellant relies on this statement to confirm that the tipper deck he originally provided to the complainant under their contract used the landing leg system.  The complainant’s mother’s reference to the tipper deck being on legs suggests that she has seen and remembered the complainant having a tipper deck that used the landing leg system.  The tipper deck that is the subject of the theft charge does not use the landing leg system.  The appellant invites me to draw the inference   that   the   complainant’s   mother   has   confused   the   tipper   deck   the complainant originally received with the one belonging to the appellant that the complainant later came to use.

[13]     Apart from the transcript of evidence, other fresh evidence has come to light. This evidence, which is dated September 2007, could only have become known to the appellant after the defended hearing.  The Crown did not object to me receiving it.   The failure of the complainant’s trucking business resulted in the company he operated under going into liquidation and I was informed during the hearing that the complainant was bankrupted as well.

[14]     His accountant prepared a statement of affairs for the Ministry of Economics and Development’s Official Assignee.   In the statement of affairs, the accountant lists as one of the assets of the company in liquidation a set of “tipper legs”.  The appellant relies on this evidence as confirmation that the complainant must at some point in time have been in possession of a tipper deck with landing legs since there is no other reason for him to have the landing legs.  The possession of the landing legs is consistent with the complainant having once had a tipper deck that could be

removed  using  landing  legs.    Moreover,  the  complainant  having  a  tipper  with landing legs, coupled with his later use of a tipper deck that did not use landing legs as part of its system for interchanging its decks, confirms the appellant’s evidence that the complainant has had the use of two tipper decks.

[15]     The  final  troubling  aspect  of  the  conviction  which  was  brought  to  my attention arises from the Judge’s conclusions that there was a conflict between the evidence of the appellant and that of Mr Trowbridge from Falcon Engineering.  At the defended hearing a written witness statement from Mr Trowbridge was admitted. The statement confirmed that Falcon Engineering had worked on the tipper deck that was the subject of the theft.   The Judge found that the appellant had denied that Falcon Engineering had worked on this particular tipper deck.  The Judge records at [6]   that   the   appellant’s   evidence   was   that   the   tipper   deck   that   went   to Falcon Engineering was not the tipper deck in the photographs that was the subject of the charge of theft.

[16]     However, the Judge’s finding on there being a conflict between the evidence of the appellant and that of Mr Trowbridge is incorrect.  The appellant’s evidence was   consistent   with   that   of   Mr   Trowbridge.      The   appellant   said   that Falcon Engineering had worked on the complainant’s truck and on the tipper deck that the appellant claimed was his.   The appellant accepted that the tipper deck Falcon Engineering had worked on was the deck he had provided on loan to the complainant and not the tipper deck that was originally sold with the truck.

[17]     The appellant submitted to me the factual error the Judge made concerning this aspect of the appellant’s evidence could have caused the Judge to find against him.  At [8] the Judge finds that it was Falcon Engineering that had worked on the tipper deck, which he treats as contradicting the appellant’s evidence on this topic. However, that is not how I read the appellant’s evidence.  He says he did work on the subject tipper deck, but he also says that Falcon Engineering did work on it as well.  This means there is nothing contradictory between his evidence and that of the Falcon Engineering witness.  The Judge was confused on this issue.

[18]     Furthermore,  the  Judge  formed  a  negative  view  of  the  appellant.    The Police Officer’s denial of the appellant’s explanations during the interviews, about how tipper/landing legs could help identify whose tipper deck the subject deck was, would have caused the Judge to doubt the appellant’s credibility.

[19]     There was no independent evidence to establish that the appellant had taken the tipper deck.  The evidence of the prosecution witness Mr Hullah is unclear as to when he saw a tipper deck in use by the complainant.  He identifies the subject deck as one that was used by the complainant but it is not clear to me from his evidence that he could categorically say that was the only tipper deck the complainant had used.

[20]     Here there was a contest between the complainant’s evidence and that of the appellant.   In this circumstance the view the Judge formed of the appellant’s credibility would have been highly relevant to his decision to convict the appellant.

[21]     The  Judge  may  have  reached  an  unfavourable  view  of  the  appellant’s credibility as a consequence of:

a)       the Judge’s confusion about there being a contradiction between the appellant’s evidence and that of Mr Trowbridge;

b)the Police Officer’s denial that the appellant had explained the distinguishing features between two tipper decks; the first being the one the appellant allegedly sold to the complainant and the second being the one the appellant allegedly lent to the complainant.

[22]     The evidence before me shows that the Judge was wrong on the existence of a contradiction between the appellant’s evidence and that of Mr Trowbridge.  The evidence also shows that the appellant did at the earliest opportunity attempt to describe to the Police the distinguishing features between the deck he claimed was his and that he claimed to have sold earlier on to the complainant.

[23]     At [6] the Judge records that the complainant denied that the tipper deck sold to him had landing legs.   However, the evidence before me shows that the complainant had landing legs/tipper legs in his possession at one time.  This could suggest he must have once used a tipper deck that used the landing legs/tipper legs system of removal.

[24]     The appellant contends that his conviction is the result of a miscarriage of justice.  The test to establish a miscarriage of justice is to be found in Sungsuwan v R [2006] 1 NZLR 730 SC. Sungsuwan  deals  with  appeals  under  s  385  of  the Crimes Act 1961 following the entering of conviction on indictment, whereas this is an appeal brought under s 115 of the Summary Proceedings Act 1957.  However, the principles to be drawn from Sungsuwan assist in determining whether or not to allow an appeal under s 115 of the Summary Proceedings Act.

[25]     Sungsuwan  makes  it  clear  that  incidental  errors  or  irregularities  are  not enough.  The errors or irregularities must be such that they are seen to deprive the defendant of his right to a fair trial under s 25(a) of the New Zealand Bill of Rights Act 1990, or they cause the appellate Court to consider the conviction is unsafe.

[26]     I think that this is a case where the appellant has been deprived of his right to a fair trial under s 25(a).  I also think that the conviction is unsafe.  The reasons for both conclusions overlap and so I shall deal with both grounds at the same time.

[27]     The appellant was entitled to expect that the Police Officer would accurately record  and  preserve  her  original  notes  of  the  interviews.    The  absence  of  any reference to the appellant’s explanation, about the tipper/landing legs, in the Police job sheet can indicate either a failure to record that explanation in the original notes, or a failure to transfer any such explanation to the Police job sheet.  In any event the outcome is that whereas the appellant has consistently explained the existence of two tipper decks, each with a different feature for removal from a truck deck, his explanation to the Court appeared as if it was being given for the first time.  This appearance was compounded by the Police Officer’s evidence to the Court that the appellant had never mentioned tipper/landing legs before.  Hence, the Judge gained the  misleading  impression  that  the  appellant’s  explanation  on  the  topic  of  the

tipper/landing legs was constructed for the defended hearing.   This would have damaged the appellant’s credibility on this topic as well as his credibility in general.

[28]     The outcome of the defended hearing would have turned on the Judge’s impression of the appellant’s credibility, there being no independent evidence to establish ownership of the subject tipper deck.   In such circumstances, for the appellant to have a fair trial, all the relevant evidence, including a proper account of his interviews with the Police, needed to be before the Judge.

[29]     In  addition,  there  is  the  confusion  of  the  Judge  over  the  evidence  from Mr Trowbridge of Falcon Engineering over the work on the tipper deck and the evidence of the appellant.  The Judge concluded that the evidence of the two persons was at odds and so he preferred that of Mr Trowbridge; however, the Judge reached this conclusion as a result of an error on his part.  There was no factual contradiction between Mr Trowbridge’s evidence and that of the appellant on this topic.   The Judge’s factual error caused him to reject the appellant’s evidence yet again.

[30]     Hence, the appellant’s evidence and his credibility have been the subject of adverse findings that are without foundation.   But for these adverse findings the Judge may well have concluded that he was not satisfied beyond reasonable doubt of the appellant’s guilt.  For this reason I consider the conviction is unsafe as well as a breach of the appellant’s rights under s 25(a) of the New Zealand Bill of Rights Act.

[31]     There were other aspects of the prosecution that the appellant relied on in support of his appeal.  I have not dealt with those aspects because the matters I have already outlined are sufficient to convince me that there has been a miscarriage of justice and that the appellant’s conviction is unsafe.

[32]     There are additional factors that were not raised before me which cast further doubt on the appellant’s conviction.  These factors are also relevant to the question of whether or not I should refer this case back to the District Court for a re-hearing. As with the failure of the Police Officer to record properly the interviews with the appellant, these factors reveal the lack of care taken in the preparation of this prosecution.

[33]     First, the complainant’s evidence was that the tipper deck along with the truck and spreader deck were his.  But the general impression I have from the new evidence of the correspondence from the Official Assignee and the attendant documentation is that the acquisition of the truck and the two decks was actually the result  of  a  contract  between  two  companies.     One  of  the  companies  was Skyline Transport Ltd of which the complainant was a shareholder/director and the other company was Slave Holdings Ltd trading as F   Transport of which the appellant was a shareholder/director.  This impression is confirmed by the evidence of Julie Trye, who is a shareholder/director of Slave Holdings Ltd and other associated companies as well as the partner of the appellant.  Ms Trye is responsible for the bookwork of Slave Holdings Ltd and the associated companies.   In her evidence she referred to the contractor driver arrangement, under which the complainant said he was operating, as being a contract between Skyline Transport Ltd and Slave Holdings Ltd.  Ms Trye’s evidence also establishes that the true nature of the arrangements and relationships between the appellant and the complainant was available for the Police to discover at the time the charge was laid.

[34]     Moreover, the correspondence from the Official Assignee’s office also shows that  the  true  nature  of  the  transaction  was  that  Skyline  Transport  Ltd  obtained finance from Auckland Finance to enter into the contract with Slave Holdings Ltd. Finance was provided under a hire purchase agreement between Auckland Finance and Skyline Transport Ltd to enable Skyline Transport Ltd to purchase a truck and other equipment.   After Skyline Transport Ltd had difficulty meeting the finance commitments, Auckland Finance exercised its rights under the hire purchase agreement and repossessed the assets that were subject to the hire purchase agreement.     The  impression  to  be  gained  from  the  information  held  by  the Official Assignee is that a tipper deck was part of the assets that were subject to the hire purchase agreement.

[35]     No Court can be blind to the legal realities of the persons and transactions relevant to a prosecution.   The companies were separate legal entities from the individuals who carried out the companies’ business.   It follows that there is no reliable evidence to prove the complainant was ever the owner of any tipper deck. Mr Harris’ evidence that he was the owner of the tipper deck needs to be understood

as that of a lay witness who may fail to recognise, let alone understand the legal distinction between a company and its officers and shareholders.  The Police should have clarified these matters before the prosecution was commenced.   As matters stand, the Police appear to have presented a prosecution for alleged theft to the District Court relying on the evidence of a complainant who has never had a legal interest in ownership of any tipper deck, let alone the one that was the subject of the prosecution.

[36]     Secondly, at page 10 of the notes of evidence, the complainant says that after “his” truck and spreader deck were re-possessed, the finance company wanted to know where the tipper deck was.   This statement removes any doubt that a tipper deck was part of the finance arrangement.   It also suggests that Auckland Finance had repossessed the truck and spreader deck before the alleged theft of the tipper deck.  If so, by the time of the alleged theft, the ownership of any tipper deck that Skyline Transport Ltd owned may have moved to Auckland Finance.  Without the finance agreement being in evidence, it is unclear which entity would have been the owner of any tipper deck that was subject to that agreement, once the borrower fell into default.  I think, however, that likely outcome would have been that ownership passed to Auckland Finance.

[37]     It seems, therefore, that insofar as ownership of the subject tipper deck was disputed, the complainant was never a legitimate contender for its ownership.  The correct complainant was either Skyline Transport Ltd, or, if the default under the finance agreement occurred before the alleged theft, Auckland Finance.   The later circumstance would depend on the terms of the finance agreement.  Since this was not a case where the prosecution was based on theft from an unknown owner, it was necessary for the Police to prove that the complainant had a legally recognisable interest in the tipper deck at the time of the alleged theft.

[38]     I refer to these matters now because they constitute additional reasons which confirm my conclusion that the accused did not receive a fair trial and that his conviction is unsafe.  They also demonstrate that this is not a case where the flaws in the prosecution case can be cured, simply by a re-hearing of the case.  Further work, including the identification of the legitimate complainant, is required before this case

can   be   re-heard.      This   process   will   be   complicated   by   the   fact   that   if Skyline Transport Ltd would have been the legitimate complainant, it is now either in liquidation or it has now been wound up.  If it is in liquidation the liquidator and not Mr Harris is the appropriate person to act on the company’s behalf.   If it has already been liquidated it no longer exists.

[39]     Under s 115 I can allow the appeal and simply quash the conviction and set aside the sentence imposed, or I can send the case back to the District Court for re- hearing.  The appellant invited me to do the former whereas the Crown invited me to do the latter.  I understand the tipper deck was valued at approximately $1,500.  The appellant has no previous convictions.   Medical reports provided to me without objection from the Crown show he is not a well man.  As I have identified above, there are serious problems for the prosecution in relation to the identification of the legitimate complainant.  These problems will add to the delay that would inevitably occur if I direct the prosecution be re-heard.

[40]     I see little point in a re-hearing of the prosecution.  The identity of the proper complainant needs to be established; it may be that the correct complainant no longer exists.  There is no independent evidence to prove the alleged theft.  In a credibility contest between Mr Harris (who would still have to give evidence of the relevant transactions as he was a shareholder/director of Skyline Transport Ltd at the relevant time)  and  the  appellant,  now  that  the  key evidence  of  the  Police  interviews  is available, it is likely that the prosecution will be unable to discharge the burden of proof it carries, given the high standard of proof required.

[41]     The appellant has referred me to R v Christiansen (2001) 19 CRNZ 256 where the Court of Appeal refused to order a re-trial.   The factors the Court of Appeal took into account were that Mr Christiansen had no previous convictions, and he had already faced the burden of one trial.  In that case the Crown did not seek a re-trial.   Nonetheless, I consider the factors the Court of Appeal identified are helpful to my decision on the appropriate outcome for this appeal.  The appellant has already had to endure the burden of a prosecution.  He has had to go to considerable trouble to establish his rights to a fair trial were compromised.  Any re-hearing of this prosecution will not be able to be dealt with quickly or expeditiously.  He should

not have to wait while the Police attempt to resolve who is the correct complainant and whether that complainant has an interest in pursuing the complainant.   The appellant should not, given the circumstances of this particular case, have to face another defended hearing.   Accordingly, I consider the appropriate outcome is to allow the appeal and to set aside the conviction and sentence imposed on the appellant.

Result

[42]     The appeal is allowed.  The conviction of theft entered against the appellant is set aside, as is the sentence imposed following the conviction.

Duffy J