Horne v Police
[2014] NZHC 1161
•28 May 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-43 [2014] NZHC 1161
LINCOLN DAVID HORNE
v
NEW ZEALAND POLICE
Hearing: 27 May 2014 Counsel:
M Boyd for Appellant
J A Eng for RespondentJudgment:
28 May 2014
JUDGMENT OF WILLIAMS J
Introduction
[1] Mr Horne was convicted of burglary under s 231(1)(a) of the Crimes Act
1961 after a Judge-alone trial in front of Judge Broadmore on 20 February 2014 in the Lower Hutt District Court. He was convicted with a co-defendant, Mr Pomare. A third co-defendant, Mr Smith, pleaded guilty earlier to the charge of burglary.
[2] Mr Horne now appeals against the conviction on the basis that Judge Broadmore erred in law and in his assessment of the evidence to such an extent that alone or in combination, a miscarriage of justice occurred.
[3] In dismissing the appeal, I have decided that Judge Broadmore was entitled to draw inferences that Mr Horne and his co-defendants intended to commit burglary from three pieces of evidence that were clearly established:
(a) they were in the house at the time of their arrest;
HORNE v NEW ZEALAND POLICE [2014] NZHC 1161 [28 May 2014]
(b)a hot water cylinder was removed from the hot water cupboard in the house and tipped on its side on the floor; and
(c) there were tools in the house capable of being used for removal of the cylinder.
[4] I set out my reasons below.
Background facts
[5] The prosecution’s case was that Mr Horne and Mr Smith went to Mr Pomare’s house, picked him up in a car and the three of them went to the property. The property was an abandoned and partly burned out house. The appellant and co-defendants went to the property to steal copper fittings and a hot water cylinder from it. A neighbour to the property, Ms Small, saw the three men go into the property. She did not see them carrying anything. She phoned the police.
[6] Sergeant Cook was the first police officer to arrive at the address after Ms Small’s telephone call. He saw Mr Pomare and Mr Smith standing over a hot water cylinder that was tipped on its side. According to Sergeant Cook, one of them was wearing blue gloves and holding a spanner, and the other was holding a hacksaw. Sergeant Cook asked them if they had permission to be in the house. They said no. Mr Horne was not present with Mr Pomare and Mr Smith at that point but Sergeant Cook found him walking into the hallway from one of the bedrooms. Mr Horne was not carrying any tools.
[7] Mr Pomare made a statement to police. He said that Mr Horne and Mr Smith had arrived at his property in a car, and the three of them went off on the expedition. Mr Horne did not make a statement to the police.
[8] Mr Horne and Mr Pomare elected not to give evidence during the Judge- alone trial.
Statutory Principles
[9] An appeal must be allowed if in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or in any case, a miscarriage of justice has occurred for any reason.1
[10] An appeal against conviction proceeds by way of rehearing. This requires the appeal court to give a judge’s reasoning close scrutiny and come to its own decision on the facts. An appeal against conviction should be dismissed unless:
(a) there has been an error that affected the verdict; and
(b) there was a real risk that the error affected the determination of guilt.2
[11] Mr Horne was convicted of burglary. Section 231(1)(a) of the Crimes Act states that every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who enters any building without authority and with intent to commit an imprisonable offence in the building.
[12] The prosecution must thus prove Mr Horne intended to commit an imprisonable offence. Intention is to be inferred from the circumstances of the case. The circumstances are established by any relevant evidence. It is not necessary to show that a crime has been committed, but rather that there was intent to commit a crime at the point that entry was made.3 Without intent, there is no burglary.4
[13] Mr Pomare and Mr Smith told Sergeant Cook that they knew they were not supposed to be in the house. Judge Broadmore needed to be satisfied that the three
men were at the property with the intention to steal items.
1 Criminal Procedure Act 2011, s 232.
2 Sungsuwan v R [2006] 1 NZLR 730 (CA) at [110].
3 Holland v Police HC Wellington AP283/97, 12 November 1997.
4 R v Collins [1973] QB 100, [1972] 2 All ER 1105.
Judge Broadmore’s decision
[14] Four police officers gave evidence. Sergeant Cooke gave his account of what he saw when he arrived first at the property. The other three officers, Constables Andrews, White and Cross, gave evidence as to their dealings with Mr Horne, Mr Pomare and Mr Smith on arrival at the address and as to the location of the tools and the hot water cylinder inside the property.
[15] Judge Broadmore was satisfied on three points. First, he was satisfied that Ms Small saw the three men entering the address. He was also satisfied on Sergeant Cook’s evidence that the three men did not have permission to be there.
[16] Second, Judge Broadmore was satisfied on Sergeant Cook’s evidence that Mr Pomare and Mr Smith were holding tools when Sergeant Cook arrived. However, Judge Broadmore said he would “struggle to be satisfied beyond reasonable doubt” about the chain of custody in relation to the tools presented as exhibits during the hearing.5 This was because the four police officers gave conflicting accounts on where the tools were located in the room. Judge Broadmore found that this was not material because the police officers’ evidence satisfied him that the tools were brought into the property.
[17] Third, Judge Broadmore accepted the four police officers’ evidence that the hot water cylinder had only recently been disturbed because Mr Pomare and Mr Smith were standing over it with water “sloshing out”. He was satisfied that this showed the three men were there with the intention of stealing items from the property. Judge Broadmore did not find that it was material that the “water spillage” was not recorded by any of the officers in their respective notebook entries.
[18] Also in relation to the hot water cylinder, Judge Broadmore was satisfied that there was enough time to sever the top and bottom pipes of the hot water cylinder and then to roll it on its side by the time Sergeant Cook arrived. Judge Broadmore considered that the 20 to 25 minute timeframe that he apprehended was available to the defendants was enough time. This finding seems to have been in error. It
conflicted with the evidence of Sergeant Cook who said the timeframe was eight to
11 minutes.
[19] For Mr Horne, Judge Broadmore considered even though Mr Horne was not carrying tools, there was sufficient evidence for him to find that Mr Horne was there also with the intention of committing a crime. In that respect, Judge Broadmore relied on the statement of a co-accused. That is Mr Pomare’s statement that Mr Horne had picked them up intending to go on this expedition to burgle the property.
Grounds of appeal
[20] Ms Boyd on behalf of Mr Horne bases his appeal against conviction upon four main grounds. For convenience, I have set them out in the following way. The appeal is on the basis that Judge Broadmore erred:
(a) in his assessment of the evidence of:
(i)Exhibit 1 (the tools and gloves) being the same tools in the possession of the Mr Smith and Mr Pomare;
(ii)the window of time available to the three co-defendants to enter the property and cut down the water cylinder;
(iii)the credibility of the witnesses who gave evidence about the water spillage from the hot water cylinder; and
(b) in law by:
(i)relying on Mr Pomare’s police statement to find that Mr Horne had the same intention as the co-defendants;
(ii)allowing hearsay evidence, or alternatively placing weight on unreliable evidence, given by Constable Andrews; and
(iii) applying the case Trompert v Police throughout his judgment.6
[21] The appellant says that these errors either alone or in combination are such that a miscarriage of justice has occurred, and Mr Horne’s conviction should be set aside and a judgment of acquittal entered.
Did Judge Broadmore err in his assessment of the evidence?
The tools
[22] Ms Boyd has raised the issue that all four officers gave conflicting accounts of where the tools were positioned in the room when apprehending the three men. The appellant also says Judge Broadmore erred in his assessment of the evidence by accepting that the items produced as Exhibit 1 were the same tools as those allegedly in the possession of the defendants. However, I do not find that this submission materially affects whether the tools were brought to the property.
[23] Judge Broadmore accepted that the photographs showed the tools to be in good condition and looked new. He was satisfied that this meant the tools had recently been brought to the property rather than being abandoned tools belonging to the property. Further, it was open to him to accept Sergeant Cook’s evidence that he saw Mr Pomare and Mr Smith actually holding the tools. The other three officers saw the tools in the room while dealing with the appellant and co-defendants. The fact that they gave conflicting accounts as to the location of the tools in the room does not affect the fact that the tools were there. This issue produced no possibility of miscarriage.
Time
[24] The appellant says that Judge Broadmore erred in his assessment of the evidence regarding timing by accepting there was 20 to 25 minutes between Ms Small seeing the defendants enter the property and the first police officer arriving inside. The appellant says the evidence shows that it was between eight and
11 minutes. The Crown accepts that Judge Broadmore may have made a factual error when addressing the issue of timing.
[25] Ms Small’s phone call was taken and a job event was created at 1.19 pm by the Police Communications centre. Sergeant Cook said that he was dispatched at
1.14 pm and that he arrived at the property at 1.24 pm. He said that he was using his wristwatch for the times he noted. He said that the time period was “about eight minutes or so”.7
[26] I do not consider Judge Broadmore’s error in assessing the available time as
20 to 25 minutes instead of eight to 11 minutes displaces Sergeant Cook’s evidence that he found Mr Pomare and Mr Smith standing over the removed hot water cylinder. This in itself was enough evidence to infer that the appellant and co- defendants intended to commit a crime. Timing was beside the point. It was not a material error that resulted in a miscarriage of justice.
[27] The appellant further submits that the Judge referred to an irrelevant consideration in making a decision about whether there was time to remove the hot water cylinder, namely the lack of evidence about the time it would take to empty the hot water cylinder.
[28] There was no evidence adduced on how much time it would take to dismantle the hot water cylinder. In my view, Judge Broadmore assumed that the hot water cylinder could have been placed in the position it was found, in the time available to the defendants. Judge Broadmore erred by making this assumption without evidence, but it was not a material error. It could not displace the fact that Mr Pomare and Mr Smith were standing over the hot water cylinder when found. The error did not result therefore in a miscarriage of justice.
Water spillage
[29] The appellant says that the Judge erred in accepting the officers’ evidence that water was coming from the hot water cylinder despite a number of factors together casting doubt on the evidence such as:
(a) Sergeant Cook said the water was “sloshing out” although the
cylinder was not moving;8
(b) Constable White’s evidence that the water had stopped sloshing
within 10 minutes;9
(c) Constable White said the cylinder was still about a third full;10
(d) the photograph did not show any water;11 and
(e) Constable White’s evidence that the area could have been already wet
by rain coming in through the fallen-in roof.12
[30] The appellant says it is critical that these details were not recorded in police notebooks.
[31] All four police officers were consistent in their evidence that there was water spilling out of the hot water cylinder onto the floor. It was a factor that Judge Broadmore took into account to infer that the hot water cylinder was recently tipped on its side. But even without the evidence of moving water in the cylinder, Mr Pomare and Mr Smith were standing over it tools in hand. This was more than enough evidence for Judge Broadmore to infer that the appellant and co-defendants
intended to steal the item from the property.
8 Page 34, lines 15 to 18; Page 54 lines 25 to 27, Notes of Evidence.
9 Page 63, lines 4 to 5; Page 64, line 5 Notes of Evidence.
10 Page 80, lines 26 to 27 Notes of Evidence.
11 Page 62, line 6 Notes of Evidence.
12 Page 71, line 26 to 31; Page 72, line 1 to 2 Notes of Evidence.
Did Judge Broadmore err in law?
Co-defendant’s statement
[32] The appellant says that Judge Broadmore erred in relying on the statement of the co-defendant to find that Mr Horne had the intention of committing a crime despite not carrying tools. The appellant says there was no evidence as to the purpose of Mr Horne and Mr Smith in picking up Mr Pomare apart from going for a drive.13 Judge Broadmore said:14
… I consider that [Mr Horne] was [there with the intention], because he and Mr Smith were the two people who, on Mr Pomare’s account and again not contradicted by any other evidence, turned up at [Mr Pomare’s] place … and took him off on this expedition. On that basis, it seems to me that Mr Horne was deeply involved in the plan and the intention of the three of them collectively…
[33] The Crown accepts that Judge Broadmore made an error in relying upon Mr Pomare’s statement to find that Mr Horne was involved in the offending. It breached the restriction in s 27(1) of the Evidence Act 2006 on the use of statements by co-defendants.15
[34] The real question is whether Judge Broadmore could draw inferences from the evidence of Ms Small and the police officers to conclude that Mr Horne intended to commit an imprisonable offence at the property.
[35] In my view there was already enough evidence for Judge Broadmore to draw the inference. How Mr Horne ended up at the property is not important. The important fact is that he was at the property when he was apprehended by the police and his two associates were standing over a tipped over hot water cylinder carrying tools. Once again although this was an error in law, the error did not result in a
miscarriage of justice because it could not have affected the outcome of the trial.
13 Page 41, lines 11 to 13, Notes of Evidence.
14 Police v Horne, above n 5, at [18].
15 Evidence Act 2006, s 27(1) – “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding”.
Hearsay evidence
[36] The appellant says that Constable Andrews gave evidence as to what Sergeant Cook indicated had happened to the tools when Sergeant Cook had not given evidence on this point. This evidence was objected to by Ms Boyd during the cross-examination of Constable Andrews as hearsay evidence.16
[37] The Notes of Evidence show that Constable Andrews stated what he saw Sergeant Cook pointing to a table and what he heard Sergeant Cook say. Sergeant Cook gave evidence before Constable Andrews. Sergeant Cook had already given evidence that he saw Mr Pomare and Mr Smith holding the tools when he entered the property.
[38] Thus, Constable Andrews’ evidence was evidence given by a witness about a previous witness, so it does not come within the definition of a hearsay statement.17
The limb of the submission must therefore fail.
[39] The alternative submission that Judge Broadmore’s reliance on Constable Andrews’ unreliable evidence resulted in a miscarriage of justice also must fail. Constable Andrews gave evidence that the exhibit photographs depicted the tools in a different area in the room than where Sergeant Cook said they were. That was indeed an inconsistency but it does not go to the heart of the case. It does not affect the inference the Judge drew from other evidence that the three men brought the tools to the property.
Applying Trompert
[40] The appellant says Judge Broadmore incorrectly relied upon Trompert to find that Mr Horne should have adduced evidence about how to remove a hot water cylinder and how long it would take.18
[41] In Trompert, the Court of Appeal held that, when determining what weight should be given to the evidence, the Court is entitled to take into account the failure
16 Page 52, line 5 Notes of Evidence.
17 Evidence Act 2006, s 4.
18 Police v Horne, above n 5, at [13].
of the accused to give explanations that he or she might naturally be expected to give if he or she was innocent.19
[42] A discussion on this principle was revisited by the Court of Appeal in Satya v
R.20 The Court cited the following passage from Gunthorp:21
… [A]n inference may be drawn only from evidence, not from the absence of evidence. Equally, a Court's right in certain circumstances to have regard to an accused's failure to give evidence ‘is not allowed to supply the want of necessary proof’: R v Burdett (1820) 4 B & Ald 95 at p 140 per Holroyd J, quoted in Trompert at p 358. On the other hand, where facts are proved which call for explanation by the accused he ‘preserves silence at his peril … the silence of an accused person has always been a major indication of guilt in cases where he might be expected to speak if he were innocent’: per F B Adams J in Purdie v Maxwell [1960] NZLR 599 at p 605, in a passage adopted in Trompert at p 358 …
[143] Here the Judge did not go so far as to draw an inference from Mr Hawkins' silence. Rather, he treated that silence as giving the prima facie case of authorisation and direction sufficient further weight to bring it to the point of proof beyond reasonable doubt. He was in our view entitled to do that; it was a common sense conclusion.
[43] In my assessment, Judge Broadmore did not err when he relied on Trompert. Mr Horne was at the property without permission, his co-defendants had tools with them and there was a tipped over hot water cylinder in the building. Judge Broadmore correctly recognised the principle that in the circumstances of the case he was entitled to draw common sense inferences from those facts in the absence of an explanation from the defendant. It is important not to confuse the drawing of sensible inferences from available evidence with reversing the onus. They are not the same thing.
[44] The circumstances of the present case are similar to those in Holland v Police.22 Holland was an appeal against a burglary conviction, where one of the grounds raised was insufficient evidence for finding an intent to commit a crime. An eyewitness saw the appellant climbing out of a bedroom window of a property.
Gloves were lifted later from the appellant’s kitchen in his own home. The evidence
19 Trompert v Police, above n 6, at 358; citing with approval Purdie v Maxwell [1960] NZLR 599 (HC).
20 Satya v R [2010] NZCA 165 at [44]; discussing Trompert v Police, above n 6, R v Gunthorp
[2003] 2 NZLR 433 (CA) and R v Haig (2006) 22 CRNZ 814 (CA).
21 Satya v R, above n 19, at [48]; citing R v Gunthorp [2003] 2 NZLR 433 (CA).
22 Holland v Police, above n 3.
showed that at the property where the appellant had climbed out of the window, articles had been moved and drawers opened, but nothing was taken.
[45] Greig J considered that when somebody uninvited has entered a house and spends time going through items in the property, the common sense answer is that the conduct indicates some sinister or improper intention. The inevitable inference is that the entry was made for the purpose and with the intention of stealing something.23
[46] Ms Small saw Mr Horne, Mr Pomare and Mr Smith enter the abandoned burned out property. Mr Pomare and Mr Smith told Sergeant Cook they did not have permission to be there. Mr Pomare and Mr Smith carried tools and one of them wore gloves. They were standing over a tipped over hot water cylinder. Mr Horne was in another room, but was an associate of the other two men. The inevitable inference that Judge Broadmore drew was that the entry was made for the purpose and with the intention of stealing something.
[47] Accordingly, I find that although there were errors in both the assessment of the evidence and in law, they were not material errors that resulted in a miscarriage
of justice. The appeal against conviction is dismissed.
Williams J
Solicitors:
Public Defence Service, Wellington
Crown Solicitor, Wellington
23 Holland v Police, above n 3, at 6.
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