Haitana v Police

[2016] NZHC 1252

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-11 [2016] NZHC 1252

BETWEEN

CHRISTOPHER DEREK HAITANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 June 2016
Appearances:	D Goodlet for the Appellant M Blaschke for the Respondent
Judgment:	7 June 2016
Reasons:	10 June 2016

JUDGMENT OF MALLON J

Introduction

[1]      Mr Haitana was convicted following a judge alone trial on a charge of theft.1

He appeals against his conviction.2   The theft was in respect of cattle.  The issue at trial was the ownership of the cattle.   The prosecution’s case was that the cattle belonged  to  Mr Mickleson  who  farmed  a  neighbouring  property.    Mr Haitana’s defence was that the cattle belonged to him.  Mr Haitana contends the Judge should have preferred his evidence to that of the prosecution on that issue and the Judge was wrong to convict him.  As advised orally at the conclusion of the hearing, the appeal

is dismissed.  My reasons are set out below.

1      Crimes Act 1961, ss 219 and 223(b) (maximum penalty seven years imprisonment).

2      Mr  Haitana  was  sentenced  to  four  and  a  half  months  community  detention,  six  months supervision and 100 hours community work. An appeal against sentence has been abandoned.

HAITANA v NEW ZEALAND POLICE [2016] NZHC 1252 [7 June 2016]

The prosecution evidence

[2]      Mr Mickleson farms a property near Mangaweka.  The farm is a 3,000 acre property made up of interconnecting blocks.   One of those blocks, which is about

500 acres, shares a boundary with Mr Haitana’s property.  Mr Mickleson runs about

100-150  mainly  Friesian/Hereford  cows  on  this  block  along  with  about  1000 hoggets.

[3]      On 2 March 2015 Mr Haitana telephoned Mr Barrell, a stock agent for 29 years, to arrange the sale of 20 “weaners” (calves weaned from their mother).  This was the first contact he had ever had with Mr Haitana.

[4]      On 4 March 2015 Mr Barrell met with Mr Haitana at his property.   There were only two cows and two weaners in the yard this time.  Mr Haitana said the rest were in the scrub and he could not get them out.  He said he would get them out and put on the NAIT tags (tags that were required for sale) before they were picked up. He told Mr Barrell he needed them to be sold that week because he was in dire need of cash.

[5]      On 5 March 2015, Mr Deighton, a neighbouring farmer saw a person on a motorbike, deep into the Mickleson property, chasing cows and calves.   Mr Hill, another neighbour, saw a motorbike and two men herding cows and weaners into Mr Haitana’s property.  Neither neighbour could see who the man or men were.

[6]      Also on 5 March 2015, Mr Haitana telephoned Mr Barrell to say there would be 28 weaners for sale.   Arrangements were made with a transport company to collect the weaners the following morning.

[7]      On 6 March 2015 a transport company driver came to collect the weaners as had been arranged.   He could not find Mr Haitana, so he mustered the weaners himself.  He had been told there would be 28 weaners but he could find only 25.  He took them to the yards for sale.

[8]      On 7 March 2015 Mr Buchanan, who also farmed in the area, saw the cows on the road and in Mr Haitana’s yard.  He recognised them as being Mr Mickleson’s

cows, due to their breed and the fact they were looking back towards Mr Mickleson’s property.   The cows were in a very distressed state.   They were calling for their calves and needed water.  Mr Buchanan drove up the road many times and he was 98 per cent sure they were Mr Mickleson’s cattle.  He had never seen more than a dozen cattle or 20 at the absolute most on the Haitana property except when it had been leased to another farmer around five years ago.

[9]      Mr Buchanan telephoned Mr Mickleson and left a voice message to the effect that some of Mr Mickleson’s cows were on the road. After receiving Mr Buchanan’s call Mr Mickleson saw cows on the road and in Mr Haitana’s yards and holding paddocks.  Their calves were missing.  He recognised them as Mr Mickleson’s cows because of their breed and because they had the ear marks he puts on his cows.  The calves were not with the cows.

[10]     Mr Mickleson explained that calves are born between mid-October and the end of November and that it was his practice not to wean the cows until around July or August  depending  on  the  feed  situation.    Mr  Buchanan  confirmed  this  and regarded it as “lax” compared with his own practice of weaning in March or April. He considered Mr Mickleson’s farm had plenty of feed, more than anyone else in the district.

[11]     Mr Mickleson  retrieved  the  cows  and  called  the  police.    The  transport operator was alerted to a problem with the weaners.  They were delivered back to Mr Mickleson on 9 March 2015.  Mr Mickleson said they mothered up with the cows. He said that a mother cow will only let her own calf suckle her.   Mr Buchanan agreed that it was very difficult for a cow to mother a calf that was not hers.

[12]     Mr Haitana’s brother gave evidence.  He had not been managing the farm for four or five years but was still a partner in the business.  When he was involved in managing the farm they normally had 50 cows and the most they had was 84.  He took over the running of the farm after this incident.   At that time there were 10 cows, plus a further four which were in Mr Mickleson’s paddock.  There were no calves which he thought was strange.  The accounts for the previous financial year had not been finalised because the stock figures did not match up.

Defence evidence

[13]     Mr Haitana farms a 300 acre property of which about 100 acres is scrub.  His main occupation is a shearer.  He has sheep and cattle on the property and had been looking to get his stock numbers up.  At the beginning of 2015 he had around 48 cows and 48 calves “roughly if not more”.  They were a mixture in terms of breed and age.  They included Friesians and Herefords.  He puts a Haitana tag in their ears although not all of his cattle had these tags because “they get ripped out and all sorts”.   He knew his cattle because he bred them and they were important to him financially.

[14]     Mr Haitana was required to have the cattle TB tested every three years.  He had records of TB testing completed by the vet which showed the number of cattle tested each year as follows: 43 cattle in 2009, 45 cattle in 2010 and 48 cattle in 2012. From 2012 and the beginning of this year he thought he had sold two cows and two calves.  He had removed no other stock during that period of time.

[15]     His stock went missing “reasonably often”.  He understood Mr Mickleson to have a lot more cattle than him.   They were a mixed breed and looked similar to Mr Haitana’s.   He installed a steel gate against an old wooden one between the boundary of their two properties because he did not want a mix up with the cattle. He thought that might happen because Mr Mickleson’s cattle looked hungry.  When Mr Haitana went up there looking for his cattle he noticed the old wooden gate had gone.  On other occasions he had found the gates left open.

[16]     Mr Haitana decided to sell some stock because he wanted to breed a better blood line.  He contacted Mr Barrell to sell his stock.  He was in a hurry because he did not want to pay for another TB test.  He accepted he may have told Mr Barrell that he wanted them sold that week because he was in dire need of some cash although he could not remember saying this.  He arranged to sell around 20 calves, with the cows to be sold a few days later.  He had dealt with Mr Barrell in the past.

[17]     When Mr Barrell came to view the cattle Mr Haitana could only find two cows and two calves.  He thought they could have been anywhere.  He accepted he may have told Mr Barrell they were probably in the scrub, as that was where they

usually were but he did not know if they were there.  Later he was driving down the clay road between his property and Mr Mickleson’s property.  He saw his bull and approached it.  Uncharacteristically the bull ran away so Mr Haitana followed it.  He then found his cows on Mr Mickleson’s property.

[18]     Mr Haitana recognised these cows due to being familiar with them from breeding them and raising some of them for 13 years and because they had his ear tags.  He did not know why Mr Mickleson had said the cattle returned to him did not have a Haitana tag on them.  He did not know what Mr Mickleson’s tags looked like at the time but he does know now.

[19]     With the help of another person he mustered his cows back to his property. They  were  on  a  small  white  motorbike.     When  they  mustered  the  cows, Mr Mickleson’s cows stayed up in another paddock.

[20]     After getting the cows back to his property Mr Haitana tagged all the calves so they were ready to be sold.  He did not know how many were male and how many were female.  He therefore just wrote 28 in total on the animal declaration form.  Mr Haitana did not hear anything further about this matter until about a month later when the police arrested him.  After this incident he lost his truck because he could not afford to pay for it.

[21]     Mr Haitana’s mother gave evidence that the farm had been in the family for many years.  In the last 13 or 14 years Mr Haitana and his brother had farmed the land.  In the last three or four years Mr Haitana had farmed it on his own.  She was not asked to give evidence about how many cattle or calves were on the property prior to 2 March 2015.  She and her husband were present when the TB testing was carried out in March 2012. At that time there were 45 big cattle and their calves.

The District Court

[22]     The District Court Judge considered Mr Haitana’s evidence to be unreliable.3

He considered Mr Haitana to be uncertain about some things.   Examples he gave

3      Police v Haitana [2015] NZDC 22984.

were Mr Haitana’s uncertainty as to the date when this occurred, the number of cows he had on his property and the number of weaners he had arranged to sell.   He considered  some  of  Mr Haitana’s  evidence  was  contrary to  commonsense.    For example Mr Haitana suggested that Mr Mickleson may have been “setting me up or something” when no reason was put forward as to why that would be the case.  The Judge also noted that some claims had not been put to the prosecution witnesses. For example Mr Haitana’s evidence that the cows had his ear marks in them was not put to Mr Mickleson.  His evidence that he sometimes found gates open was also not put   to   Mr Mickleson.      Other   evidence   was   inconsistent   with   unchallenged prosecution evidence.   For example Mr Haitana’s suggestion that Mr Mickleson’s cattle looked hungry went against the unchallenged evidence that Mr Mickleson had more feed available to him than any other farmer in the district.

[23]     The Judge accepted Mr Mickleson’s evidence that he recognised the stock and saw his own earmarks in the cows.   This was supported by Mr Buchanan’s evidence that he recognised the cows as belonging to Mr Mickleson and that the stock had spread along the Mickleson boundary in an attempt to get back to their blocks.   It was also supported by the evidence that the cows had been recently weaned from their calves and when the calves were returned they mothered up with the cows.  The Judge acknowledged that witnesses can be honestly mistaken about what they purport to identify but  concluded based on the combination  of these factors that the cows belonged to Mr Mickleson.  The Judge noted that no motive for taking the stock was required to prove the charge.  However Mr Haitana’s comment to Mr Barrell that he was in dire need of cash suggested a possible motive.

[24]     The Judge concluded that Mr Haitana took Mr Mickleson’s cows from a Mickleson paddock, when he knew they were Mr Mickleson’s cows, he had no claim of right to the cattle, he intended to deprive Mr Mickleson permanently of the cattle and the cattle was valued at over $1,000.   The charge had been proved beyond reasonable doubt.

The law

[25]     The challenge on the appeal is to the Judge’s decision to reject Mr Haitana’s evidence and to find it proven, on the prosecution’s evidence, that the cattle belonged to Mr Mickleson.  The relevant ground on appeal is, therefore, that “the Judge erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”.4

Assessment of appeal

[26]     In this case there was conflicting evidence about who owned the cattle.  The Judge was required to make an assessment of the credibility and reliability of the competing evidence.  He did so.  The conclusion he reached was well open to him. Mr Mickleson’s  evidence  that  he  recognised  the  cows  on  the  road  as  his  was supported by Mr Buchanan’s evidence.   It was supported by the evidence that the calves mothered up with the cows when they returned.  It was also supported by the circumstantial evidence as to how the cows came to be in Mr Haitana’s possession for sale.

[27]     Counsel for the defendant acknowledges the difficulty of this appeal in light of the evidence. She says Mr Haitana’s evidence that he found the cows because he followed his bull supports his evidence.  However the Judge was entitled to reject Mr Haitana’s evidence about that and to accept the prosecution evidence that the cows belonged to Mr Mickleson.  There is nothing to suggest that the District Court Judge erred in his assessment of the evidence to the extent that a miscarriage of justice has occurred.

Conclusion

[28]     The appeal is dismissed.

Mallon J

4      Criminal Procedure Act 2011, s 232.