Franicevic v The Police HC Christchurch AP 202-3/01

[2001] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY AP 202-3/01

BETWEEN JENIFER ANNE FRANICEVIC
Appellant

AND THE POLICE
Respondent

Hearing: 22 February 2001 and 23 March 2001

Counsel: E Lorimer for Appellant
P A Currie for Respondent

Judgment: 8 May 2001

JUDGMENT OF PANCKHURST J

[1] The appellant was convicted in the District Court on twenty-one charges of receiving. At the same time alternative charges of theft of the relevant property were withdrawn. The appeal was filed by the appellant in person and on the grounds that the evidence was insufficient to justify the convictions. That contention was hopeless.

[2] However, a consideration of the evidence and of the terms of the judgment prompted a different concern. The reasoning which led to the convictions for receiving, and withdrawal of the alternative theft charges, was contentious. It appeared much more likely that the appellant was indeed guilty of theft rather than receiving. If that view of the matter prevailed was it competent to substitute convictions for theft pursuant to s132 of the Summary Proceedings Act 1957? Or, was the special plea of autrefois acquit available to the appellant with reference to the substitution of theft convictions on account of the consideration and withdrawal of the alternative charges in the District Court?

[3] These issues required that counsel have further time to consider the case and file memoranda. That has now occurred. Incidentally, these circumstances occasioned the delay in delivery of this judgment.

The Facts:

[4] The appellant, who is aged 46 years, at all material times resided at flat 2, 7 Percival Street, Christchurch. On 23 August 1999 the police executed a search warrant at that address. What was described as a truck load of stolen property was recovered. The nature of that property was unusual by comparison to that often taken in cases of home burglary or theft. It comprised items of clothing, outdoor furniture, pot plants, garden ornaments, garden tools, and various other gardening items (seeds, fertiliser etc). The property was all of limited value, which was reflected by the fact that the twenty-one charges of theft laid were pursuant to s227(d) of the Crimes Act under which the value of the property must in each instance be less than $100 (and the maximum penalty is three months imprisonment).

[5] All of the various items had been stolen from residential homes between December 1998 and August 1999. That is to say from about the time that Ms Franicevic commenced to live at Percival Street. Moreover, the addresses from which the property were taken were all within a relatively confined part of the city. Typically such houses were two or three blocks distant from 7 Percival Street, and certainly within walking distance of that address.

[6] The modus operandi of the thief was also distinctive. Property was removed from garages, verandahs, front porches, washing lines, and from gardens. The pattern of offending was such that following execution of the search warrant the police were able to invite the numerous complainants to the police station to inspect the items recovered. Thereby, twenty-one separate charges eventuated of both theft and, in the alternative, receiving.

[7] When spoken to by the police the appellant offered no explanation for her possession of the stolen items. Likewise, in the District Court she elected not to give evidence.

[8] Only one of the complainants had observed the likely offender. This person was asleep at about 6.30 am on 14 June 1999 when it became evident that an intruder was on the property. She observed “somebody walking out of our driveway with a rubbish bag full of something”. The witness thought the person was a female, with a dark pony tail and wearing track pants. However, since it was still partially dark at the time her description of the person was quite general. The person made off before the police could be called.

The District Court Decision:

[9] The learned Judge outlined the essential facts, as I have endeavoured to do. He was left in no doubt that Ms Franicevic was knowingly in possession of stolen property. He continued:

“It seems to me that the essential issue for the court is to decide whether the informant has proved the theft charges to the required standard or whether it is the alternative charges which have been proved.

The defendant gave no explanation for her possession of the items when asked, at the time of the search, how the property had come to be in her flat. She declined to make any comment. I am suspicious to say the least that in respect of all the property the defendant was the thief. However, there is no direct evidence of her having taken the items herself. The witness I heard from today, Nicola Hensley, came closest to being in a position to identify the thief. However, she was unable to positively identify the defendant as being the person she saw walking away from her house across Strickland Street.”

The Judge then proceeded to find that the elements of receiving were proved beyond reasonable doubt and that convictions must follow.

[10] His decision then continued:

“I therefore find the 21 receiving charges proved and I invite the prosecutor to now withdraw the theft charges.”

That occurred. I shall return to the significance of this shortly.

[11] In my view three distinct issues arise in relation to the decision under appeal. First, was the so-called doctrine of recent possession properly applied and are the convictions for receiving appropriate? Second, if not, may I substitute convictions for theft pursuant to s132 of the Summary Proceedings Act? Third in the particular circumstances may the appellant raise the plea of autrefois acquit in relation to substitution of the convictions for theft?

Theft or Receiving?:

[12] Counsel for the Crown argued that the evidence against the appellant was overwhelming, with the result that the only issue at trial was whether she was guilty of theft or receiving. I agree. As to that counsel submitted it was “a matter of discretion for the tribunal of fact” which alternative was the more appropriate. In short therefore, the Judge was entitled to convict on the lesser alternative charge and it would be inappropriate for this Court to interfere with that exercise of discretion.

[13] To my mind the issue is not quite that straight-forward. As is noted in Adams on Criminal Law (paragraph CA 258.18) there exists a divergence of opinion in the leading English and Australian authorities concerning the form of direction to a jury with reference to their election between these two alternatives. The Privy Council in Attorney-General of Hong Kong v Yip Kai-Foon [1988] 1 All ER 153 considered that it was wrong to instruct the jury to elect between the two “according to which is more probable or likely in the circumstances”. Correctly, the jury must be told to consider the theft first and if not satisfied on it to the required standard then to consider the alternative of receiving. In short, that there should be no direction in a recent possession case allowing an election between alternatives on the basis of the probabilities.

[14] The High Court of Australia however, in Gilson v R (1991) 65 ALJR 416, declined to follow Yip Kai-Foon. It held that where a person was charged in the alternative with theft and receiving and the evidence was consistent with either the jury should be instructed that provided they were satisfied the accused was guilty of one or the other, but were unable to say which, they should return a verdict of guilty on the less serious offence. Upon a reading of the judgments this represented an unashamedly pragmatic approach. The Court considered that where guilt was obvious the dilemma of proof as between two offences of dishonesty should not stand in the way of a conviction for the lesser crime.

[15] In New Zealand the Australian approach has been preferred at least at High Court level, in Beazley v Police [1994] 11 CRNZ 524, a decision of Thomas J. I note also that the late Sir Francis Adams strongly advocated that the choice between alternatives where the case was based solely on evidence of recent possession should be made according to the probabilities. It is not perhaps surprising that the present authors of Adams text “respectfully submitted” that the approach in Gilson was to be preferred.

[16] I do not consider that any tension between the approaches in other countries is of moment in the context of this case. The Judge did not venture into the area of how he, sitting alone, should elect between the alternatives. The extract from the judgment quoted earlier indicates that while he was highly suspicious that the defendant was the thief, there was no direct evidence against her, and therefore he moved on and found the receiving charges to be established. This would seem to mirror the approach in Yip Kai-Foon, namely that reasonable doubt is the sole test and is to be applied first in relation to the theft charge and then in relation to the alternative.

[17] However, it seems to me that the reasoning by which convictions for theft were rejected involved an error of approach. Recent possession is a form of circumstantial evidence. Where an accused is shown to be in possession of stolen property reasonably soon after it was stolen, an inference may be drawn such person was either the thief or a receiver. The absence of “direct evidence” of theft should not be determinative of whether a conviction for that offence is appropriate. That would be to deny the utility of the circumstantial proof and of the doctrine itself. Rather, the Judge (or jury) must confront all of the evidence and decide whether theft is established to the required standard, albeit that the evidence is circumstantial in nature rather than direct. It seems this did not occur in the present case.

[18] In Yip Kai-Foon Lord Ackner referred to the case of R v Langmead (1864) 169 ER 1459 and quoted a passage from that case:

“In cases of this nature (recent possession) it often happens that some of the jurors feel doubts, and think they ought not to convict a prisoner of stealing unless someone has actually seen him taking the property, and so they concur in convicting him of receiving supposing that that is the more lenient view.”

With respect, I think much the same thing happened here. Accordingly, I consider I am bound to reconsider the issue and may not proceed on the basis suggested by Crown counsel.

[19] To my mind the case is an unusual one. In particular the property taken was out of the ordinary by comparison to the run of residential burglary or theft cases. The individual items were of relatively insignificant value and not of a kind for which there was a resale market. The volume of property was apparently hoarded by the appellant, until the intervention of the police. Another striking feature is that all of the thefts occurred within walking distance of the appellant’s address. The very notion of twenty-one thefts (committed by someone unknown) followed by twenty-one acts of receiving this particular property I find inconceivable.

[20] If this is not enough there is also the evidence of the witness who saw an intruder leaving her property clutching a rubbish bag full of stolen items (cleaning products, pot plants, foodstuffs, ornaments, etc). Although, as the Judge observed, this witness was unable to positively identify the appellant, it is plain that the offender fitted the appellant’s general description. Hence, if anything, the only direct evidence added to the strength of the circumstantial case, rather than detracted from it.

[21] In the result I am in no doubt that the evidence proved the appellant was the thief. The pattern of the offending was distinctive. There were the strongest possible indications that the offender was of unusual character, perhaps in unfortunate circumstances, given the items which were taken. The manner in which the appellant was apprehended with such a substantial quantity of stolen property, hoarded in her flat, was consistent with that profile. I consider that on a proper analysis of the evidence convictions for theft were inevitable.

Substitution of Theft Convictions?:

[22] Pursuant to s132(1) of the Summary Proceedings Act this Court in a general appeal context may substitute one offence for another provided that the defendant “has not been prejudiced in his defence”, or the case may be remitted to the District Court with a direction to amend. There is no scope for a suggestion of prejudice. The police, quite properly, preferred alternative counts of theft and receiving. The appellant was represented by counsel at the District Court hearing. The case was conducted, including the defence, in the knowledge that the appellant was at risk of conviction for either theft or receiving.

[23] Ordinarily, I would not hesitate to substitute convictions for theft, since the evidence in my view so clearly established the commission of that offence. However, it remains to consider what flows from the circumstance that theft charges were before the learned District Court Judge and were withdrawn by leave.

Does Previous Acquittal Arise?:

[24] Sections 358 and 359 of the Crimes Act relevantly provide:

“358. Pleas of previous acquittal and conviction - (1) On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the Court shall give judgment that he be discharged from that count.

359. Second accusation - (1) Where an indictment charges substantially the same offence as that which the accused was formerly charged, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to the indictment.”

The sections are declaratory of the common law : R v Brightwell [1995] 2 NZLR 435 (CA).

[25] As is evident from the terms of the sections the previous charge and the subsequent one must have a sufficient degree of similarity, before a plea in bar is available. This can be a difficult issue in itself, but not in the present case. Here the focus is upon the previous accusations of theft and the issue is whether I may substitute convictions of theft on appeal. Similarity is not therefore in issue. It is obvious.

[26] Rather, the second requirement of the special plea, previous jeopardy, must be considered. Both sections refer to a “previous acquittal or conviction”. Does it follow that there must have been a final determination of the earlier charge (resulting in a conviction or an acquittal) or is jeopardy of conviction enough? If jeopardy is the test then the appellant was in jeopardy. Charges of theft were before the District Court, the evidence in support of them was considered by the Judge, and he concluded such evidence was insufficient. However, if an actual acquittal or conviction is required, then the special plea would not be available since the theft charges were not dismissed, rather withdrawn.

[27] Against this background it is helpful, I think, to consider a number of cases which involved the withdrawal of informations or a decision upon alternative charges. Some are summary cases and others involve indictable charges heard before a jury.

[28] First are a number of summary cases which confirm that the early withdrawal of an information provides no basis for a plea of autrefois acquit. For example, in Police v Armishaw (1993) 10 CRNZ 461 Hillyer J held that the withdrawal of an information for driving with excess breath alcohol, followed by the preferment of a further like charge (to cure a defect in the original information), did not bring s358 of the Crimes Act into play. At 466 the Judge said:

“A plea of autrefois acquit will arise only where a defendant has been in danger of conviction, and a court has held that he should not be convicted. Here the information never got to the stage where a court was asked to determine whether he was guilty of the offence charged.”

In that case the withdrawal and laying of a new information occurred prior to any substantive hearing.

[29] Likewise, in R v Maramba (1995) 104 CCC (3D) 85 the Ontario Court of Appeal reached a similar conclusion in regard to an information which was laid summarily but was out of time, and for which an indictable information was substituted. There was no formal application to withdraw the earlier information. The Court had regard to the substance of the situation, rather than form, and said that it was quite apparent the original information had been withdrawn, in effect. Hence there was no basis for a plea of autrefois acquit. Again these events preceding any substantive hearing.

[30] To the opposite effect is a judgment of Barker J in Hall v Auckland City Council, Auckland M 849/85, decision 23/1/86. The appellant was charged with refusing to permit a blood specimen to be taken and, in the alternative, with driving with excess breath alcohol. At the conclusion of the hearing the District Court Judge convicted on the refusing charge and dismissed the alternative excess breath alcohol charge. On appeal Barker J accepted that the evidence did not support a conviction for refusing, but did establish driving with excess breath alcohol. He then considered whether he may substitute a conviction for the latter pursuant to s132(1) of the Summary Proceedings Act. That course, however, he held was not open because the alternative charge had been “specifically dismissed”. Hence there was a judicial determination of the charge and substitution was not permissible, albeit this meant the appellant “evaded criminal responsibility”.

[31] I note that the facts of Hall are close to the present case, save for the distinction that here the alternative charge was withdrawn rather than dismissed. If the Judge at first instance in Hall, perhaps concerned about an appeal, had invited an application to withdraw the alternative charge would that have preserved substitution as an option on appeal? That I consider is the ultimate question in the present case.

[32] It seems to me the answer is to be found upon a consideration of appeal decisions with reference to jury verdicts upon alternative charges. The decision of the English Court of Criminal Appeal in R v Seymour (1954) 38 Cr.App.R 68 is frequently cited. The case was one of recent possession, but the appellant was only charged with receiving when theft should also have been left to the jury. Moreover, the direction of the trial Judge was held to be inadequate which required that the conviction be quashed. Goddard LCJ at 72 said this:

“In cases where the evidence is as consistent with stealing as with receiving, the indictment ought to contain a count for stealing and a count for receiving. The jury, should then be directed that it is for them to come to the conclusion whether the prisoner was the thief or whether he received the property from the thief, and should be reminded that a man cannot receive from himself. Then, to prevent other difficulties which have sometimes arisen, if the jury come to the conclusion that it is a case of receiving, they should be discharged from giving a verdict on the count for stealing. Equally, if they come to the conclusion that it is a case of stealing they should be discharged from giving a verdict on the count for receiving. Sometimes a difficulty has arisen. We have had to quash a conviction, say, for receiving and the court has come to the conclusion that the evidence showed stealing and not receiving. If a verdict has been returned on the count for stealing, this court cannot substitute for the verdict of receiving a verdict of stealing. If, however, the jury are discharged from giving a verdict on the count for stealing, and if this court comes to the conclusion that the proper verdict is stealing and not receiving, they can alter the verdict under section 5(2) of the Criminal Appeal Act, 1907.”

[33] This approach was expressly approved by the New Zealand Court of Appeal in R v O’Grady [1960] NZLR 585 (CA) a case of theft and receiving as alternatives.

Hutchison J in delivering the judgment of the Court said that where there are alternative charges “the proper course would have been, on a verdict of guilty of receiving, to take no verdict on the theft charges”. After reference to Seymour he referred to the difficulty which otherwise may arise where a conviction is quashed on appeal and a new trial is ordered, but necessarily of limited breadth because a verdict of not guilty was taken on an alternative charge. The Judge continued:

“What we have said is, of course, not meant to be applied to the case of an indictment containing a graver charge followed by a lesser charge as an alternative, where the jury holds the graver charge not established, for, no doubt, in that case the accused is entitled, before the jury turns to consider the lesser charge, to a verdict of not guilty on the graver count, and it is only when it returns a verdict of guilty on the graver charge that no verdict is taken on the lesser charge” : R v Hill [1953] NZLR 688, 695 (CA).

In Hill the charges were manslaughter and in the alternative charges of causing grievous bodily harm and assault. A conviction for manslaughter resulted, coupled with directed verdicts of not guilty on the alternatives. When the conviction was quashed on appeal, a retrial could only be directed on the manslaughter charge given the directed verdicts on the lesser alternatives.

[34] But I do not consider that the caveat or exception recognised in O’Grady with reference to a “graver charge” applies in the context of theft and receiving. As the case of Hill demonstrates there may be alternative charges where one (manslaughter) is plainly more serious than the alternatives (causing grievous bodily harm or assault). In such cases, where the more serious charge has not been proved, the accused is entitled to an acquittal on it. Where, by contrast, there are true or equal alternatives then whichever alternative is not to be the subject of a conviction may be left alive against the possibility of appeal.

[35] I infer that the learned Judge in this case invited the withdrawal application, and granted it, for that very reason. Being an experienced trial Judge he was no doubt aware of the reasoning in O’Grady and like cases. It follows, in my view, that withdrawal of the theft charges in the District Court was an available and proper course; moreover, that it had the effect of preserving the opportunity to substitute those charges on appeal pursuant to s132(1) of the Summary Proceedings Act.

[36] Incidentally I do not consider that the substitution on appeal of convictions for an alternative offence offends the underlying rationale for the special pleas. Such rationale is that no one should be punished twice for the same offence (autrefois convict), nor put in jeopardy of conviction twice for the same offence (autrefois acquit). Substitution of the correct alternative does not, I consider, compromise either concept. The appellant was always at risk of conviction for theft or receiving. That was the jeopardy she faced once alternative charges were laid. The fact that the trial judge was alive to the possibility that a different view might be taken on appeal, and that he preserved substitution as an option, means no more than that the original jeopardy was kept open. This approach is well recognised in the jury context and is equally available, I think, in summary cases.

[37] The above short review of some of the cases perhaps suggests that the availability, or not, of a plea of autrefois acquit may be a matter of chance. If, as in Hall, the alternative charge is dismissed (not withdrawn by leave) a Judge sitting on appeal will be hamstrung in relation to substitution. Equally if in a jury case the first of equal but alternative charges attracts a not guilty verdict and there is a conviction on the second alternative, again autrefois acquit may avail an appellant (should the conviction be overturned). That is, where the approach approved in Seymour and O’Grady has not been followed. It may be therefore that a case can be made for reform of the autrefois principles in the context of alternative charges, if such unevenness of outcome is to be avoided.

Result:

[38] The appeal is allowed to the extent that the convictions for receiving are quashed, and in lieu of them I substitute (pursuant to s132(1) of the Summary Proceedings Act) twenty-one convictions for theft of the relevant property.

[39] The sentence of eighteen months supervision imposed on the original charges of receiving and on a further charge of stealing a bicycle, for which the appellant was sentenced at the same time, remains appropriate and will accordingly stand.