M v Police HC Christchurch Cri-2007-409-65

[2007] NZHC 535

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000065

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 May 2007

Counsel:         P F Johnson for Appellant

S-L Litt for Respondent

Judgment:      24 May 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      The issue in this appeal against conviction is whether the Judge in the District Court was right in concluding that there was sufficient evidence to implicate the appellant in an offence of interference with a car.

[2]      The charge related to events on 27 July 2006.  The complainant, a resident of Sydney Street, said that at about midnight she went outside on account of the actions of some young men in the vicinity of her car.  She spoke to them.  On her doing so they decamped, three in one direction and one in another.  At this point she inspected her car more closely to find that hub caps had been removed and a jack and wheel

brace were in position underneath the car.  At this, she called out to the young men

M V NZ POLICE HC CHCH CRI-2007-409-000065 24 May 2007

that she would call the police.  Indeed she did so, and the police arrived a short time later.

[3]      The complainant’s evidence was admitted in the District Court by consent. The  prosecution  also  called  one  of  the  appellant’s  alleged  co-offenders.    His evidence was generally exculpatory in relation to the appellant and himself.  Also it was vague in the sense that he claimed not to know who was actually responsible for the more incriminating actions.

[4]      The appellant also gave evidence.  He explained that he had been the sober driver this night with three other young men as his passengers.  As they drove into Bolton Street his Mitsubishi car sustained a puncture.  He pulled up.  There was a short discussion amongst the occupants of the vehicle and they walked off eventually into Sydney Street.

[5]      With reference to exactly what he was doing at the time that the complainant came on the scene, Mr M   was asked these questions:

Q.     Evidence has been given today that you were standing in the middle of the road laughing is that a fair recollection of events.

A.      Yep.

Q.      What were you laughing at.

A.Someone had done something stupid, I can’t remember what it was at this time.  At one point I was on the ground laughing.

[6]      Judge MacAskill, in finding the charge proved, rightly identified the essential issue as whether the appellant’s participation was established beyond reasonable doubt.   The fact of interference with the complainant’s car was plainly beyond dispute, but was the appellant implicated in that offence?

[7]      The Judge concluded that he was:

[8]       Looking  at  the  matter  broadly  then,  while  accepting  that  the defendant was not actively involved in the removal or the attempted removal of a wheel from the complainant’s vehicle, I am satisfied that he was implicated in the activity as a principal party.  I am satisfied that he knew that that is what his associates were up to.  While he said he was walking down the street to go to a drink at a friend’s house, I am satisfied that his true objective was not that, but the result of the previous discussion to the

effect that a tyre would be obtained from another vehicle.  I am satisfied that he was fully aware that the jack and brace had been taken from his vehicle and was going to be used to obtain another tyre and that when he stood in the middle of the road watching, he knew exactly what was going on.  He knew that the wheel that would be removed from the vehicle would in fact be used to replace the wheel with the flat tyre on his vehicle.  I simply do not accept his evidence to the contrary.

Hence the Judge concluded that the charge was established beyond reasonable doubt. He imposed a penalty on the day, being a sentence of 100 hours community work.

[8]      Mr Johnson has challenged the Judge’s process of reasoning.  In essence his arguments  can  be  reduced  to  the  single  proposition  that,  although  suspicion abounded,   the   evidence   was   simply   insufficient   to   enable   the   appellant’s participation to be established to the required standard.

[9]      It is apparent from reading the evidence of the appellant and his alleged co- offender that both were deliberately vague in what they said.   Moreover, Judge MacAskill obviously viewed their evidence in that light.

[10]     Accordingly the real issue posed by the case is whether the other objective circumstances, coupled with what little the appellant said to implicate himself, was sufficient to establish his participation. What, then, are the objective circumstances?

[11]     The first is that it was the appellant’s car which suffered a puncture.  He was driving a Mitsubishi.  The complainant’s car was likewise a Mitsubishi.  After the puncture occurred in Bolton Street, there was a discussion amongst the occupants. The appellant was asked about the discussion when interviewed by the police on the relevant night:

Q:      Whose idea was it to go and get the tyre from another car?

A:      It wasn’t my idea, it was between the four of us, but not my idea.

To my mind that admission is of critical importance and underpins the necessary assessment of all that followed.

[12]     The evidence then establishes that the four young men moved as a loose group from Bolton Street to Sydney Street where the complainant’s vehicle was

parked.  During this walk one of their number was in possession of a jack and brace which had been removed from the appellant’s vehicle.

[13]     In due course the complainant’s car was located and one, or perhaps two, of the group became involved in the activity necessary to remove a wheel from it.  But there is, of course, no evidence that the appellant directly involved himself in those actions.   The evidence is that he remained in the middle of the road, texting and laughing.

[14]     The next objective fact is that the complainant emerged, spoke to the group and that they then made off, according to the appellant, two in one direction and two in another.

[15]     Is this evidence sufficient?  Presence at the scene of an offence is, of course, not sufficient to render a person a party to that offence.   More is required.   But deliberate presence at the scene of an offence, which is committed at night and in a tolerably surreptitious  manner,  is  another  matter.    Here  you  have  a  number  of additional factors.  There had been a discussion involving these men where the idea of removing a tyre was discussed, albeit the appellant says that was not his idea.

[16]     A search followed as they were walking and, in time, the selection of a particular vehicle took place.   While the interference was occurring the appellant remained.  He may not have been directly involved, but he was in the middle of the road laughing while this occurred.

[17]     From this series of objective circumstances it seems to me it is a short step to the conclusion that he did by his presence intentionally encourage what was going on.  No doubt this was seen as something of a lark so far as the group was concerned. In those circumstances presence, with knowledge of the plan, and approval of what was occurring through laughter, to my mind does convey intentional encouragement. That, of course, is sufficient for an offender to be characterised as a party to the offending.

[18]     For these reasons, which substantially accord with those of the District Court

Judge, I consider that there was sufficient evidence and that a conviction was fully justified.  The appeal must, therefore, be dismissed.

Solicitors:

Paul Johnson Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent