Henriksen v Police - [2015] NZHC 2572

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-27 [2015] NZHC 2572

BETWEEN
NATHAN DAVID HENRIKSEN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2015

Appearances:

Appellant in person
M-J Thomas for Respondent

Judgment:

21 October 2015

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 21 October 2015 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

NATHAN DAVID HENRIKSEN v NEW ZEALAND POLICE [2015] NZHC 2572 [21 October 2015]

[1] Following a defended hearing in the District Court, Judge Coyle found Mr

Henriksen guilty on a charge of stealing two trailers valued at $1,600.00.1 On

12 June 2015, Judge Farnan sentenced Mr Henriksen to 12 months imprisonment.2

He now appeals against both conviction and sentence.

Background

[2] The charge was laid as a result of the events that occurred on 10 November

2014. On that date Mr Henriksen went to a property farmed by a Mrs Wallis and her husband. Mr Henriksen approached Mrs Wallis whilst she was working in the milking shed, and asked if she had any spare scrap metal that he could have. It is common ground that Mrs Wallis told Mr Henriksen that he could have a length of bailer chain that was lying on a rubbish heap a short distance away. Mr Henriksen then left the milking shed and went to the area where the chain was lying.

[3] After she had finished working in the milking shed Mrs Wallis went to the area where the chain had been lying. She saw that the bailer chain was no longer on the rubbish heap, and she also noticed that two farm trailers that had previously been stored nearby had disappeared. Bags of calf meal that had been sitting on one of the trailers had been removed and placed on the ground. Mrs Wallis then immediately contacted the police, who subsequently spoke to Mr Henriksen and arranged for him to return the trailers a few days later.

[4] The sole issue at the hearing in the District Court was whether Mrs Wallis had given Mr Henriksen permission to take the trailers as well as the chain. Mrs Wallis told the Judge that she did not give him permission to do so; Mr Henriksen gave evidence to the opposite effect.

Approach on appeal

[5] This is a first appeal against a conviction entered by a Judge in the District

Court. This Court may only allow the appeal if the Judge erred in his assessment of

1 New Zealand Police v Henriksen [2015] NZDC 4375.
2 New Zealand Police v Henriksen [2015] NZDC 11061.

the evidence to such an extent that a miscarriage of justice has occurred.3 In this context a miscarriage of justice means an error, irregularity or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.4

[6] Generally an appellate court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henriksen v Police

Details

AGLC: Henriksen v Police [2015] NZHC 2572
Case: [2015] NZHC 2572
Decision Date: 21 October 2015

CaseChat Overview and Summary

Nathan David Henriksen appealed against his conviction and sentence for stealing two trailers from Mrs Wallis's farm. The District Court Judge had found Henriksen guilty based on the evidence presented by Mrs Wallis, who claimed that she had not given Henriksen permission to take the trailers. Henriksen argued that Mrs Wallis had given him permission to take the trailers and that he had not stolen them. The High Court had to determine whether the District Court Judge had erred in his assessment of the evidence, which could result in a miscarriage of justice.

The High Court considered the credibility of the evidence presented by both parties. The Judge had preferred Mrs Wallis's evidence, finding it more credible than Henriksen's. The High Court found the Judge's reasoning compelling, as it was inherently improbable that Mrs Wallis would give away valuable farm equipment to a stranger when she was using it daily for her farm operations. Additionally, Henriksen's evidence that he thought the gift of the trailers was too good to be true was significant in this context, as was the fact that he considered them too valuable to be used for scrap metal. The High Court did not consider it was open to them to disturb the Judge’s findings in relation to credibility.

The appeal against conviction was dismissed as the High Court found no miscarriage of justice had occurred. The appeal against sentence was also dismissed as the High Court considered that an end sentence of twelve months imprisonment was well within the available range, given the value of the property stolen and the brazen way in which the theft was committed.

Orders