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…

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: [2024] NZHC 307
Decision Date: 26 February 2024

CaseChat Overview and Summary

Leo Manavaikai appealed against his conviction and sentence imposed by the District Court, following his guilty plea to charges of theft and other related offences. The appeal centred on the sufficiency of the evidence to support the conviction of theft and the appropriateness of the sentence. The High Court found that there was no error in the District Court's assessment of the evidence and no miscarriage of justice had occurred.

The High Court considered whether the trial judge erred in finding Mr Manavaikai guilty of theft. The court noted that the appellant had to demonstrate that an error had been made. Under the Criminal Procedure Act 2011, an appeal against conviction can only be allowed if there was an error that resulted in a miscarriage of justice. The court further clarified that a miscarriage of justice requires a gross, persistent, or prejudicial departure from good practice that irremediably affects the trial outcome.

The High Court found no identifiable error in the District Court's decision. The court accepted the prosecution's evidence that Mr Manavaikai's truck had returned to the depot empty after loading items not included in the consignment notes, and that these items were never delivered. The High Court concluded that the District Court's decision was consistent with the evidence and that the appellant's explanation was not credible.

Given the result of the conviction appeal, the High Court found no basis to intervene in the sentence of 10 months' home detention imposed by the District Court. The appeal against both conviction and sentence was dismissed.

Orders