M v Police HC Auckland CRI 2007-404-344

[2008] NZHC 2208

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000344

BETWEEN  M

Appellant

ANDPOLICE Respondent

Hearing:         25 February 2008

Counsel:         A Holland for Appellant

M Hodge for Respondent

Judgment:      28 February 2008 at 3:30pm

JUDGMENT OF WILLIAMS J

This judgment was delivered by Hon. Justice Williams on

28 February 2008 at 3:30pm

Pursuant to Rule 540(4) of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

Date:………………………

The appeal against conviction for the burglary committed on 24 May 2007 is dismissed.

Solicitors:

Public Defence Service, P O Box 76 715, Manukau City
Crown Solicitor, P O Box 2213, Auckland

Copy for
Case Officer: Raj Iyengar, Auckland High Court

Judge Wade, District Court at Manukau

M V POLICE HC AK CRI 2007-404-000344  28 February 2008

Introduction

[1]      In an oral judgment delivered in the Manukau District Court on 28 September

2007, the appellant, Mr M  , was convicted by Judge Wade on the following two counts:

a)        Of burgling the dwelling house at 291 Pakuranga Road, Pakuranga, on 24 May 2007;

b)        Of burgling the building at 175 Church Street, Otahuhu, on 20 June

2007.

An alternative count of receiving in relation to (a) was withdrawn by leave.

[2]      On 25 October 2007, Mr M   was sentenced to concurrent terms of

2 years 9 months imprisonment on each of the burglary convictions.

[3]      He  has  appealed  to  this  Court  solely  against  the  conviction  on  the  291

Pakuranga Road charge and this judgment deals with that appeal.

[4]      However, when, in exchanges between bench and bar, it was pointed out that, even were Mr M   to be successful in this appeal, it might reduce his lengthy record by one burglary conviction but would do nothing in respect of the length of his incarceration, Mr Holland, counsel for the appellant, advised that should that be the result of the conviction appeal, Mr M   would then seek leave to appeal out of time against the sentence on the conviction for burgling 175 Church Street to try to reduce the overall length of his time in jail.

[5]      That is an unsatisfactory stance for an appellant to take. It is much to be preferred that all matters concerning any particular appellant should, if possible, be dealt with at one hearing.  Appellant courts are well accustomed to dealing with a raft of arguments, sometimes contradictory, at hearings without the expenditure of

additional time and resources by litigants and courts with additional hearings being required concerning any one appellant.

[6]      In that regard, it is perhaps appropriate to add that, even had Mr M   been permitted to pursue the course just outlined, it is by no means self-evident a sentence of two years nine months’ imprisonment being imposed on a single conviction for burglary would be regarded as manifestly excessive for a person with some 44 previous convictions, including seven for burglary and at least one for aggravated robbery amassed in the 11-year period to 2006.  He has served a number of terms of imprisonment including one of four years for the aggravated robbery commencing in 1997.  The Pakuranga Road burglary occurred only eight days after the appellant’s latest release from prison.

Evidence

[7]      The householder at 291 Pakuranga Road spoke of returning to his home about 4.00pm on 24 May 2007 to find the back door open, the louvres removed and property stolen.  That property included a laptop, some DVDs and a cellphone.  He reported the loss to Police and followed that two days later with a formal statement. His discovery of his loss was, it seems, sequential over a period as he looked for items.    For  instance,  he  originally  reported  only  two  DVDs  stolen  and  only discovered and reported his cellphone loss two to three weeks after the burglary.

[8]      Mr M  ’s partner was called as a prosecution witness.   In executing a search warrant on her property on 29 June 2007, the Police took a cellphone which she said was hers as the appellant had given it to her.  He did not tell her anything about its provenance.  It was later definitively established from serial numbers that it belonged to the Pakuranga Road householder

[9]      When executing that search warrant, the Police also uplifted 11 DVDs.  Only one  had  the  same  name  as  either  of  the  two  about  which  the  householder complained.  In cross-examination, the householder agreed he guessed the number of DVDs missing, although he accepted his initial report to the Police mentioned two or three and only named one (although he named a second in his collection which had

not been stolen).  That notwithstanding, he accepted he told Police five of the DVDs uplifted by warrant were his.

[10]     The appellant’s partner claimed four or five of the DVDs belonged to the appellant and had been in her house for months.

[11]     In evidence, the appellant said that he first saw the exhibited cellphone in late May or early June 2007 when he borrowed it from his cousin.  He did not pay his cousin for it, nor enquire as to its source.

[12]     He said he had obtained seven or eight DVDs from a friend about 18 months before the warrant and kept them at his partner’s home.

[13]     His cousin gave supportive evidence in saying he brought the cellphone from

“some random guy at a train station, a Polynesian with fuzzy hair”, before 15 June

2007.  He gave it to Mr M   but told him nothing about whether it was stolen and Mr M   did not ask.   He also bought some DVDs and a laptop from the same person for a total price of $150.

Judgment under appeal

[14]     After recounting the basic facts of the burglaries, the property taken and the fact that a neighbour’s noting of the car registration number at the time of the Church Street burglary led Police to execute the search warrants at the partner’s address, the Judge then held there was “no doubt at all” that the cellphone found at the address was that of the Pakuranga householder as its unique identifying number matched, and that, amongst the DVDs at Mr M  ’s partner’s address, there was at least one title which matched that of the householder.

[15]     The Judge recorded the appellant’s evidence and the claim that it was no more than a coincidence that at least one of the DVDs in the partner’s home had a title  corresponding  with  one  taken  from  Pakuranga  Road.     He  recorded  the appellant’s evidence as to the source of the cellphone and his cousin’s supporting evidence.

[16]     The Judge then said: “I reject the defence evidence” for some six factors which he then detailed.  The two relating to Pakuranga Road were:

“●If the defendant was not a burglar then there has been an amazing series of coincidences.

●As I say there can be no dispute but that [householder]’s cellphone was found in the possession of the partner of the defendant.  There is no dispute that she received it from the defendant who just happens to have some of the same DVD’s as went missing from [the Pakuranga Road] address.”

[17]     The Judge then rejected “any reasonable possibility of all those coincidences taking place” and held the evidence satisfied him beyond reasonable doubt that the appellant committed both burglaries “partly based on the fact that the property in question was so recently found after the commission of the burglaries in question”. He convicted the appellant on both counts and gave leave for the receiving charge to be withdrawn.

Submissions

[18]     Mr Holland submitted there was insufficient evidence against the appellant in relation to the Pakuranga Road burglary to satisfy the Judge beyond reasonable doubt.  He said there was no evidence Mr M   unlawfully entered the property and the Judge had insufficient grounds to convict the appellant of that burglary on the basis of the doctrine of recent possession.  He further submitted the Judge failed to give appropriate weight to the defence evidence.

[19]     He   carefully   reviewed   what   he   submitted   was   imprecision   in   the householder’s evidence about the number and titles of the DVDs.   He said the appellant accepted the cellphone uplifted on the search warrant was that of the householder but the Judge failed to balance that fact against the defence evidence, evidence which he submitted should have been regarded as raising a reasonable doubt.

[20]     He challenged whether the doctrine of recent possession applied to items found over a month after the burglary and submitted, in reliance on authority later

discussed, that the evidence overall fell short of achieving the required standard of proof.

[21]    For the respondent, Mr Hodge also carefully analysed the evidence and submitted  the  Judge,  although  without  reference  to  the  authority,  followed  the correct approach to the alternative counts concerning the Pakuranga Road burglary citing R v Sizemore CA290/05 5 December 2005 (applying Attorney-General of Hong Kong v Yip Kai-Foon [1989] AC 648, 656 where the following appears) :

“In their Lordships’ opinion the trial Judge, but for the injection into his summing up of the passage quoted from Chan Tat v R [1973] HKLR 114 at

119, directed the jury quite properly as to the way in which they should approach a count of robbery and the alternative offence of handling.   The jury were required to approach the matter by two stages.  First, they had to

ask themselves whether they were satisfied beyond reasonable doubt that the respondent  was  guilty  of  robbery.     This  would  involve  rejecting  the

respondent’s evidence and then being satisfied, so that they felt sure, that the ballistic evidence linked the respondent with the robberies or either of them. If they were not so satisfied, they would then proceed to the second stage,

and ask themselves whether the prosecution had satisfied them in relation to each of the ingredients of the alternative offences of handling, which the

Judge had spelt out with great clarity.  Of course, if less than a majority were in favour of convictions of robbery and less than a majority in favour of

convictions of handling, then the Judge would have to discharge the jury and order  a  new  trial.     This  case  gave  rise  to  no  special  difficulty  or complication.

[22]     Mr Hodge submitted it was clear the Judge was satisfied beyond reasonable doubt of the appellant’s guilt on the Pakuranga Road burglary and accordingly had no need to proceed to consider the alternative count.  However, if, contrary to his submissions, this Court reached the view that the conviction for the Pakuranga Road burglary should be set aside, it was open to the court to rescind the leave granted to the prosecution to withdraw the receiving charge and convict the appellant on that count  because  of  his  possession  of  the  cellphone  and  DVDs  and  his  reckless disregard as to their source when they came into his hands.

[23]     Though he accepted the Judge could have been a little more discursive in his discussion as to the reasons for convicting the appellant, Mr Hodge nonetheless submitted that the Judge plainly rejected the defence evidence and was therefore under no obligation to discuss its detail.

Discussion and decision

[24]     Given the lack of direct evidence linking the appellant to the Pakuranga Road burglary, as the Judge said the principal evidence linking him to that offence was the householder’s cellphone and the DVDs.

[25]     They were relevant to the Judge’s consideration pursuant to the doctrine of recent possession, a doctrine which allows proof of theft or receiving by circumstantial evidence.  Recency, as far as the doctrine is concerned, is a question of fact in all the circumstances of the case including the particular property in issue (see Robertson et al Adams on Criminal Law, para CA219.09(4) p 1-1416 and cases there cited).  In this case, given the appellant was not apprehended until the Church Street burglary some five weeks or so after the Pakuranga Road burglary – but very soon after the neighbour’s information led to search warrants for the premises being granted - thus it was plainly open to the Judge to regard the doctrine of recent possession as applicable to the appellant’s circumstances and the property stolen.

[26]     Given that, the evidence on the Pakuranga Road burglary before the Judge included:

a)        The undoubted fact that 291 Pakuranga Road had been burgled on

24 May 2007 and property including the householder’s identifiable cellphone and some of his DVDs together with a laptop had been stolen.

b)The undoubted fact that the cellphone uplifted from the appellant’s partner’s address on the search warrant belonged to the householder and that there were DVDs at the property which bore some similarity to those stolen in the burglary.

c)       The appellant’s partner told the Police when they executed the search warrant at her address on 29 June 2007 that the cellphone in her position had been given to her by the appellant, obviously some time prior to that day.  Accordingly, the appellant was shown to have been

in possession of the householder’s cellphone at some stage between the burglary on 24 May 2007 and execution of the search warrant on

29 June 2007.

d)The evidence given by the appellant and his cousin as to the cellphone and its source was open to the view that it was inherently implausible and amounted to no more than the commonplace explanation given by persons in their position for possession of stolen items.

e)       While the similarities arising from the two burglary were fairly slim – and  were  regarded  by  the  Judge  as  such  –  there  had  been  no application for the appellant to be tried separately on the two counts he faced.  Accordingly, when the Judge came to assess the evidence against the appellant on the Pakuranga Road burglary, he was entitled to take into account that, despite the presumption of innocence which the appellant enjoyed, the Judge was considering the sufficiency of evidence against him on the basis that the person who allegedly committed the Pakuranga Road burglary was the person  who  had committed another burglary of domestic premises in daylight hours a month  or  so  afterward  and  stole  some  items  which  bore  some similarity for those taken in the Pakuranga Road matter.  Whilst not a matter of similar fact or propensity evidence under s 43(3) of the Evidence Act 2006 – although it satisfied many of the criteria in that subsection – the Judge was entitled to take into account, in deciding whether the appellant was the burglar of Pakuranga Road, the fact he was the burglar of Church Street.

[27]     In all those circumstances, whilst, no doubt because of the circumstances and the pressure of other business, the Judge might more carefully have distinguished between the evidence on each of the charges in deciding whether it satisfied him to the required standard the accused was the offender in the Pakuranga Road burglary, no basis has been made out which in any way undermines the conclusion he reached as far as that burglary was concerned.

[28]     The appellant’s appeal against conviction of the Pakuranga Road burglary must accordingly be dismissed.

[29]     In those circumstances, it is unnecessary to consider whether it might be open to a court in circumstances such as this to rescind the leave given to withdraw an alternative receiving charge and convict on that count (Franicevich v Police HC CHCH 202-203/01 8 May 2001).

…………………………..

WILLIAMS J.