Gaffar v Police

[2013] NZHC 48

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-256 [2013] NZHC 48

BETWEEN  DAVID HASSAN GAFFAR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 February 2013

Counsel:         RM Keenan for Appellant

KV Mills for Respondent

Judgment:      4 February 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Liberty Law Chambers, P O Box 28161, Auckland 1541 for Appellant

(Email:  [email protected] )

Meredith Connell, P O Box 2213, Auckland 1140 for Respondent

(Email:  [email protected] )

DAVID HASSAN GAFFAR V NEW ZEALAND POLICE HC AK CRI-2012-404-256 [4 February 2013]

Introduction

[1]      After a defended hearing in the Manukau District Court before Judge Treston, Mr Gaffar was convicted on a charge that dishonestly and without claim of right but not so as to be guilty of theft, he took for his own purpose a vehicle.   He was sentenced to 80 hours community work and ordered to make reparation of $400. Mr Gaffar appeals against conviction.   He argues that the evidence provided an insufficient foundation for the conviction.

Background facts

[2]      The vehicle in question, a Holden Commodore, is owned by the father of Mr Gaffar’s partner, Mr Emmanuel Samuels.  On one occasion, sometime before the alleged offending, Mr Samuels had allowed Mr Gaffar to use the car when he and his partner were moving house.   On that occasion Mr Gaffar returned the car and the key.

[3]      On  24  November  2011,  Mr  Samuels  drove  the  car  to  his  workplace  at Menzies Aviation at Auckland Airport.  He arrived at about 11.00 a.m., leaving his car in the carpark close to a building housing the company’s training facility.  When he finished work at 7.00 p.m., the car had gone.  It was found 11 to 12 days later. Both sides of the car had been damaged.

[4]      The main prosecution evidence was given by Tongalaavasi Tasi who is the training and development manager for Menzies Aviation.   On the day the car was taken he was responsible for overseeing a training session of new employees that was taking place in a room on the ground floor of the building facing out towards the carpark.  He was not directly involved in the training which was being carried out by a trainee.

[5]      Mr Tasi said in evidence that between 2.00 and 4.00 p.m. he was sitting in the room looking out at the carpark when he saw a white car pull up. A passenger in the car got out and got into a silver Holden Commodore (belonging to Mr Samuels) and drove off.  Mr Tasi said he did not recognise the man who got into the Commodore

but he recognised the driver of the white car as Mr Gaffar when he drove past close to the building.  Mr Gaffar had previously worked for Menzies Aviation.  Mr Tasi had spent two weeks training him.

[6]      Mr Gaffar made a statement to the police and gave evidence.  He said that on the day in question he drove a silver or white car belonging to the company for whom he worked.  He was accompanied by a man called Khan.  He said he drove to the premises of Menzies Aviation in order to leave a business card on the car of a person he trained when he was working for Menzies Aviation.   Mr Gaffar said he dropped Mr Khan off at a McDonald’s outlet, a hundred metres before he reached Menzies Aviation,  and  picked  him  up  after  he  had  driven  around  the  Menzies Aviation building.

Judge’s decision

[7]      In his decision, Judge Treston said that the key issue was the identification of Mr Gaffar as the driver of the vehicle.  He reviewed the evidence of Mr Tasi, noting that he knew Mr Gaffar well and that he had had significant opportunities to see and deal with him face to face.  He said there was no suggestion that visibility was not good.  Identification occurred at a distance of some 3 or 4 metres.  Mr Tasi had a good view and was undistracted by other duties.

[8]      Judge Treston went on to say that if Mr Tasi’s had been the only evidence, “the Court might have had some pause” but he was entitled to take into account Mr Gaffar’s admission that he was there at about the time the car was taken.  He said that when his presence there is combined with the evidence of identification, the only reasonable inference is that he was driving the white car and dropped off the person who got into Mr Samuel’s car and drove it away.

[9]      He addressed the question of the means by which Mr Samuel’s car may have

been entered and driven away in the following passage of his judgment:

[16]      There seemed to have been no difficulty for the person who got into the car and drove it away in entering it and starting it and driving away, but of course the defendant had had access to the key to that vehicle from his father-in-law a number of times as he said, certainly once when he was

moving house with the complainant’s daughter and had access to the keys, there is nothing to stop someone from getting a duplicate key made at little expense, at little difficulty, and although there may be some speculation contingent upon that is a matter of common sense that very well could have happened and that the defendant might have had a key in any event which he gave to the other person.

[10]     He concluded:

[19]     I am satisfied that in all the circumstances there could be no other reasonable conclusion either, other than the defendant was a party to the actions of the principal offender who took the vehicle and drove it away.

Grounds of appeal

[11]     Ms  Keenan  submits  that  the  evidence  was  insufficient  to  establish  that Mr Gaffar was a party to the taking of the vehicle.   She says there must be a reasonable doubt as to whether Mr Gaffar was the driver of the car seen by Mr Tasi. She further submits that the Judge was wrong to theorise that the car was taken with the aid of a duplicate key.  She said that a finding to this effect in this regard was essential to establishing that Mr Gaffar had aided and abetted the taking of the car.

Discussion

[12]     In my view, the evidence identifying Mr Gaffar as the driver of the white car was very strong indeed.  Mr Tasi knew him well.  He had a good view of him.  He was not distracted.   Furthermore, as the Judge noted, Mr Tasi’s evidence of identification dovetailed with the evidence of Mr Gaffar himself that he was present at the scene driving a white or silver car at or about the time Mr Samuel’s car was taken.  Mr Gaffar’s version of events required the Judge to accept it as reasonably possible that two men drove a white car past the Menzies Aviation building at about the same time and that Mr Tasi erroneously identified one of them as Mr Gaffar.

[13]     As to the issue of the key, I agree with Ms Mills that proof of the means by which the car was taken was not necessary to the Crown case.   The Crown was required to prove that Mr Gaffar was a party to the taking of the car dishonestly and without claim of right.   Its case appears to have been that Mr Gaffar aided and abetted the taking by dropping off the person who took the car in circumstances

where he plainly had knowledge that the car belonged to another. The Crown did not need to show that Mr Gaffar provided a key or in some further way assisted in the taking of the car.  That is indeed the way Judge Treston dealt with the issue.   He made no finding on the subject, confining himself to an observation that the car could have been taken by means of a duplicate key.

Result

[14]     I am satisfied that there was sufficient evidence to found a conviction.  There has been no error shown in the way the Judge made his essential findings.   The appeal must accordingly be dismissed.