Mahanga v Police - [2021] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA615/2020
[2021] NZCA 95

BETWEEN	LEVI MAHANGA Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 March 2021
Court:	French, Ellis and Muir JJ
Counsel:	B N Ayrey and R T Nye-Wood for Applicant M N Zarifeh and J H Whitcombe for Respondent
Judgment:	29 March 2021 at 9 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Mr Mahanga was convicted in the District Court on one charge of receiving property valued at over $1000.00. He had been found guilty following a judge alone trial before Judge M Callaghan.[1] A subsequent appeal to the High Court was dismissed by Osborne J.[2]
[1]Police v Mahanga [2020] NZDC 13350 [District Court judgment].
[2]Mahanga v Police [2020] NZHC 2532 [High Court judgment].
Dissatisfied with that outcome, Mr Mahanga now seeks to appeal his conviction to this Court. Because it would be a second appeal, leave must first be obtained.[3]

Background

[3]Criminal Procedure Act 2011, s 237(1).

The property in question was a moped. The complainant had purchased it second-hand in January 2019 for $1,300. His uncontested evidence was that when he bought the moped, it was in brand new or near brand new condition.
The moped was stolen from the complainant’s driveway sometime between 6 pm 11 October 2019 when he parked it on the driveway and 10 am on 12 October 2019 when he discovered it was missing.
The last time the complainant had seen his moped there was, he said, nothing wrong with it — it was in perfect condition. It had only been driven for relatively short distances in the greater Christchurch region. There had been no mechanical issues. It had no scratches or dents and the seating was good.
The complainant further testified that a brand new moped would cost between $2,500 and $2,600 and so having regard to its condition, the price he had paid for it nine months earlier was a very good bargain. He considered it was still worth $1,300 at the time it was stolen.
On 14 October 2019, police saw Mr Mahanga riding the moped. When interviewed, he stated that he had purchased it three weeks ago for $50 from a person whose name he would not disclose other than to say it was a friend called James. Mr Mahanga further stated that he had been spending the past three weeks fixing it up because it had been stripped down and had no engine. All he had obtained was the frame and the wheels.
When it was put to him that the moped had only been stolen two days ago, Mr Mahanga admitted he had not obtained it three weeks ago but continued to maintain that it had been stripped down when he got it. He denied stealing it.
A police photo taken of the moped after its recovery showed it to…

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: [2021] NZCA 95
Decision Date: 29 March 2021 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Levi Mahanga to bring a second appeal against his conviction for receiving property valued at over $1000. Mahanga was originally convicted in the District Court for receiving a stolen moped, a conviction upheld on appeal to the High Court. The property in question, a moped, was stolen and later found in a dilapidated state. Mahanga claimed to have purchased the moped three weeks prior for $50, stating it was stripped down and without an engine. The complainant testified that the moped was in perfect condition when stolen and valued at $1,300. Mahanga did not provide evidence at trial.

The legal issue before the Court of Appeal was whether Mahanga could be granted leave to bring a second appeal to the Court, focusing on the sufficiency of evidence to prove the value of the moped exceeded $1000 at the time of receiving. Mahanga contended that the District Court erred in relying on the complainant's non-expert opinion on the value of the moped and that there was a reasonable possibility the thief, not Mahanga, had stripped the moped. The Court acknowledged the High Court's error in stating that Mahanga was found to have received the moped on the same day it was stolen, clarifying there was a two-day window with no evidence of the exact time of receiving.

The Court held that determining the sufficiency of evidence regarding value should not be a complex or costly task and that requiring expert opinion in every case would be impractical. The Court found the District Court Judge was entitled to rely on the complainant's evidence to support the finding on value and that there was sufficient evidence for the District Court Judge to infer the value at the time of receiving. The Court also considered the implausibility of the thief stripping down the moped, finding the moped in its condition, and selling it to Mahanga within two days. Additionally, the Court noted Mahanga's demonstrable lies to police, particularly about the time he had the moped, supporting the inference that Mahanga's claims about the condition of the moped were false. The Court concluded that there was no risk of a miscarriage of justice and declined Mahanga's application for leave to bring a second appeal.

Orders