Kirby v Police - [2020] NZHC 770

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000007

[2020] NZHC 770

BETWEEN
TREVOR PATRICK KIRBY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 March 2020

Appearances:

A Bailey for the Appellant

S Bicknell for the Respondent

Judgment:

22 April 2020

JUDGMENT OF NATION J

Introduction

[1] A young man travels overseas for a short time. He arranges to leave computer items with a family friend. One computer contains years of photographs and records he needs for his tax returns. On his return from overseas, he asks the friend to make the property available to him. The friend refuses to do so unless the young man’s mother does what the friend wants. Was the friend wrongly convicted of theft?

[2] The appellant, Mr Kirby, was found guilty of one charge of theft.1 Judge Couch sentenced Mr Kirby to a fine of $1,500, reparation of $4,500 and ordered him to pay
$130 in court costs.2 Mr Kirby appeals his conviction on the grounds the Judge
reversed the presumption of innocence and burden of proof when determining the

1 Police v Kirby [2020] NZDC 26457 (conviction judgment).
2 Police v Kirby [2020] NZDC 26456 (sentencing judgment).

KIRBY v POLICE [2020] NZHC 770 [22 April 2020]

charge, that inadmissible hearsay evidence was admitted and relied upon, and the Judge adopted illogical reasoning in support of his factual findings.

Background

[3] The complainant, Jeremy Thomas (Jeremy), resides in Queenstown and planned an overseas trip between June and October 2018.3 Jeremy was due to depart on his trip from Christchurch. In anticipation of his departure, Jeremy approached Mr Kirby and asked if he could leave his car at Mr Kirby’s home and stay for two or three nights. This is what occurred. Mr Kirby had been a longstanding friend of Jeremy’s mother, Michelle.

[4] When Jeremy arrived at Mr Kirby’s home, he had with him two computers and some headphones which were stored in a brown box. One of the computers was an older model and the other a new MacBook. It was agreed Jeremy would leave the items with Mr Kirby and collect them when he returned.

[5] While overseas, Jeremy sent a message to his father, Mark Thomas (Mr Thomas), in Queenstown, asking him to collect the box from Mr Kirby. Jeremy did not discuss this with Mr Kirby.

[6] Jeremy returned to New Zealand on 11 October 2018 and collected his car. Upon returning to Queenstown, he realised his father had not collected the property. Jeremy asked his father to contact Mr Kirby. According to Jeremy, Mr Thomas reported to his son that Mr Kirby said he still had the box.

[7] On 25 November 2018, Jeremy went to Christchurch to collect the property. When he asked Mr Kirby for his laptop back Mr Kirby refused, indicating it was the only hold he had over Jeremy’s mother. This and another conversation on 6 January 2019 were recorded by Jeremy.

3 Because I refer…

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.

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Details

Case: [2020] NZHC 770
Decision Date: 22 April 2020

CaseChat Overview and Summary

The appellant, Mr Kirby, appealed his conviction for theft of a computer and other items left in his possession by Jeremy, a friend of his daughter. The appellant was found guilty of theft after he refused to return the items to Jeremy and held them as leverage against Jeremy’s mother and her partner. The appellant claimed the conviction was unsafe because the District Court Judge erred in assessing the evidence, erred in admitting and relying on hearsay evidence, and adopted illogical reasoning in support of his findings. The Court found the appeal to be without merit and dismissed it. The Judge’s comment about the appellant’s motive to lie did not affect the outcome of the case. The Judge had adequately considered the evidence before him and made no mention of the appellant’s motive to lie when assessing the credibility of his evidence. The Judge’s reference to hearsay evidence was not an error that led to a miscarriage of justice. The Judge did not rely on the hearsay evidence when rejecting the appellant’s evidence at trial. The Judge’s reasoning in support of his findings was not illogical. The Judge was entitled to conclude that the appellant had lied in his conversations with Jeremy, given the evidence before him.

Orders