Manavaikai v Police

[2024] NZHC 307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000539

[2024] NZHC 307

LEO MANAVAIKAI

v

NEW ZEALAND POLICE

Hearing:	5 February 2024
Appearances:	B Castelino and S Paul for the Appellant O Southern for the Respondent
Judgment:	26 February 2024

JUDGMENT OF POWELL J

This judgment was delivered by me on 26 February 2024 at 3.30 pm

…………………..

Registrar/Deputy Registrar

LEO MANAVAIKAI v NEW ZEALAND POLICE [2024] NZHC 307 [26 February 2024]

[1]    Leo Manavaikai his conviction and sentence. Mr Manavaikai was found guilty of four charges of theft by Judge N R Webby following a Judge-alone trial in the District Court.1 Mr Manavaikai was subsequently sentenced to 10 months’ home detention for that offending together with further charges2 to which he had previously pleaded guilty.3

[2]    Although this appeal was brought against both conviction and sentence, Mr Castelino for Mr Manavaikai accepted that it was only appropriate to consider amendment of the sentence in the event the conviction appeal was successful.

Conviction judgment

[3]    With regard to the substantive theft charges for which Mr Manavaikai had been found guilty, these arose in the context of Mr Manavaikai’s job as a delivery driver for a company in Auckland. It was alleged with reference to CCTV footage, consignment notes, manifest records and the GPS records of the truck driven by Mr Manavaikai that Mr Manavaikai had on four occasions between January and March 2018:

(a)loaded items onto his truck for which he had not been given a consignment;

(b)failed to record those items on the manifest for his truck when it left the depot;

(c)failed to deliver those items to their intended address; and

(d)returned to the depot with an empty truck.

[4]    In finding Mr Manavaikai guilty, Judge Webby rejected Mr Manavaikai’s explanation in the following terms:4

1      Police v Manavaikai [2022] NZDC 2492 [Conviction judgment].

2      The further charges included two charges of theft, four charges of failing to answer District Court bail and one charge of driving with excess breath alcohol. Mr Manavaikai does not seek to appeal his conviction on these further charges.

3      Police v Manavaikai [2023] NZDC 20275 at [16].

4      Conviction judgment, above n 1, (footnotes omitted)

[23] …His evidence, that he either delivered the items in question or returned them to the depot at the end of the day, is clearly contradicted by other evidence that has been presented at trial. His own evidence also contradicts his position when he was interviewed, that if items were not in the consignment notes, he would not put them on his truck. I do not accept his evidence when he says that these deliveries were either made or returned to the depot at the end of the day. Not [sic] do I accept his evidence that it was “not possible” for him to have misappropriated any of these deliveries. The GPS data for his truck records a number of stops made by him on all of the dates, unrelated to his legitimate deliveries.

[5]    Judge Webby went on to consider whether the charges had been proved beyond reasonable doubt and in doing so ultimately accepted the evidence of the prosecution witnesses. With regard to the key evidence of the Auckland operations manager for the freight company, Marc Smith, Judge Webby concluded:5

[25]      The prosecution case rests largely on the evidence of Marc Smith. I found Mr Smith to be a straightforward, knowledgeable, credible, and reliable witness. I am satisfied, that because of his considerable experience in this industry that he was able to correctly identify the missing items from the CCTV footage and in the CCTV  stills,  being  loaded  onto  the  truck  by Mr Manavaikai on each occasion. I accept Mr Smith’s evidence that despite loading these items onto his truck, they were not items which were on the respective consignment notes and that Mr Manvaikai failed to manifest them each time. I also accept Mr Smith’s evidence when he says that having viewed the CCTV footage that none of these deliveries were returned to the depot on the dates in question:

I brought to the Court items that had never been delivered, never been found, but were loaded on a unit and departed our depot, and never arrived at their destination. They never came back to the depot or else they would have been found within the last four years.

…

Yes, and I’ve just explained to you twice now that I viewed the truck empty, Hazel [Libres] viewed the truck empty, and I did not get that part of the video. Now, if the freight had come back at any stage within the last four, it would have been found, it would have been – gone through a claim, another claims process, and all the people who’ve lost all their valuables would have got them.

[26]      I do not accept the propositions put to him (and rejected by him) that he had “intentionally not produced the CCTV footage of the trucks returning back”; that the CCTV footage “is all manipulated” that Mr Manavaikai was being made a “scapegoat” by TIL for these missing deliveries. He was clear in his responses that:

I have not. No, I did not intentionally show stills or video footage of an empty truck coming back, it was viewed. If it was viewed and it

5      Conviction judgment, above n 1, (footnotes omitted).

came back, we would have gone along the next line of where it went after that…if these items came back, they would have been found…

Is that what you’re asking me? Whether I manipulated the – no, I did not manipulate the CCTV footage. I did not put the CCTV footage onto a USB drive either.

The case for Mr Manavaikai

[6]    Mr Manavaikai challenged his convictions on the basis of the sufficiency of the evidence. Mr Castelino submitted that there was insufficient evidence for the Court to conclude that the items at issue had not been returned. Accordingly, he claims there has been an error amounting to a miscarriage of justice.

[7]    Mr  Castelino  submitted  that  the   lack   of   CCTV   evidence   showing   Mr Manavaikai’s truck returning empty in respect of each of the four incidents was significant given it represented the best evidence of whether the missing items had been released to the depot. Moreover, Mr Castelino noted that while Mr Smith had stated that he and Hazel Libres had looked at the entirety of the CCTV footage,     Ms Libres in her evidence stated that she had not looked at the CCTV footage of the vehicle returning to the depot and to that extent her evidence was inconsistent with that of Mr Smith.

Legal Principles

[8]    At issue is whether the trial judge erred in finding Mr Manavaikai guilty of four charges of theft. The onus is on the appellant to show that an error has been made.6

[9]    Under the Criminal Procedure Act 2011 (CPA), the Court can only allow an appeal against conviction in a Judge-alone trial if it is satisfied that:

(a)the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred;7 or

6      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

7      Section 232(2)(b).

(b)a miscarriage of justice has occurred for any reason.8

[10]   The CPA defines a miscarriage of justice as any error, irregularity, or occurrence in or in relation to or affecting the trial that:9

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[11]   A “real risk” means “a reasonable possibility another verdict would have been reached.”10

[12]   An unfair trial requires more than just an irregularity in one facet of the trial, or any departure from good practice. The departure must be “so gross, or persistent, or so prejudicial, or so irremediable” that an appellate court will have no choice but to quash the conviction.11

Discussion

[13]   Having considered the evidence adduced in the District Court and the submissions of counsel, I am satisfied there is no identifiable error in Judge Webby’s decision and that no miscarriage of justice has occurred for any reason. Accordingly, the appeal against both conviction and sentence must be dismissed.

[14]   Mr Castelino accepted in argument before me that this is not a case where there was no evidence before the Court as to whether the material loaded onto Mr Manavaikai’s truck was still present when the truck returned to the depot. As noted above at [5], Mr Smith’s evidence was clear that he had reviewed all of the CCTV footage first to locate the missing items, then to observe Mr Manavaikai loading the items onto his truck, before returning to the depot with an empty truck later in the day.

8      Section 232(2)(c).

9      Section 232(4).

10     Misa v R [2020] 1 NZLR 85, [2019] NZSC 134 at [48].

11     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

[15]   Although CCTV footage showing the truck being loaded had been saved and presented at trial, the footage of the truck returning to the depot had not been retained and was therefore not available at trial. As Mr Southern noted on behalf of the respondent, any issue relating to the absence of relevant CCTV footage was appropriately dealt with by way of a pre-trial application in respect of disclosure. In other words, it is not a miscarriage of justice for the charges proceeding to a Judge- alone trial to be decided on the basis of the evidence adduced.

[16]   When questioned, Mr Smith explained that he did not think the CCTV footage of the truck returning to the depot was relevant but confirmed that he and another employee, Hazel Libres, had watched the footage and had observed that Mr Manavaikai’s truck was empty on each of the four days in question when it returned to the depot. Although Hazel Libres did not confirm Mr Smith’s evidence that she too had witnessed the truck returning empty, she did not in any way suggest that Mr Smith was mistaken, and indeed the proposition was not put to her.

[17]   In those circumstances it was clearly open for Judge Webby to reject Mr Manavaikai’s explanation and to accept the prosecution evidence, including Mr Smith’s evidence that Mr Manavaikai’s truck had returned empty to the depot.

[18]   Further, it is clear that the Judge Webby’s conclusions were entirely consistent with the wider evidence before the Court. This included the evidence that the items in issue were never intended to have been loaded on Mr Manavaikai’s truck and removed by him from the depot. This meant that the items were not contained in the manifest which summarised what was on the truck on the four days in question and, accordingly, the management staff at the depot would not have been aware that the items were on the truck when it left the depot.

[19]   It is in any event clear from the GPS records that Mr Manavaikai’s truck did not visit the intended address for the missing items on three of the four days in question. In respect of the offending taking place on 2 March 2018, the GPS record showed that Mr Manavaikai’s truck visited the intended recipient, but the items were not delivered.

[20]   Given the result of the conviction appeal there is, as noted at [2], no basis for any intervention with regard to the Mr Manavaikai’s end sentence of 10 months’ home detention.

Decision

[21]The appeal against conviction and sentence is dismissed.

Powell J