Manukau v Police
[2022] NZHC 1591
•6 July 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000044
[2022] NZHC 1591
BETWEEN TESSA MANUKAU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 June 2022 Appearances:
Andrew Young on instructions from Jonathan Wiles for the Appellant
Robert McDonald for the Respondent
Judgment:
6 July 2022
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 6 July 2022 at 3:00 pm.
Registrar / Deputy Registrar Date:
MANUKAU v NEW ZEALAND POLICE [2022] NZHC 1591 [6 July 2022]
Introduction
[1] After a Judge-alone trial on 9 August 2021 at the Manukau District Court, Judge N R Webby found Ms Manukau guilty1 on one charge of receiving a stolen motor vehicle.2 On 21 January 2022, he sentenced Ms Manukau to 80 hours’ community work and ordered her to pay reparation of $400 to the victim.3
Ms Manukau now appeals against her conviction on the dual bases that:
(a)not all relevant information was disclosed to the trial Judge; and
(b)the Judge erred in his assessment of the evidence (both due to the undisclosed evidence and in terms of the evidence he did have at the trial).
[3] Ms Manukau accordingly seeks to admit the previously undisclosed information as fresh evidence on appeal. The Crown does not oppose the admission of the evidence, but opposes the appeal on its merits.
The offending and the evidence
[4] Just two witnesses gave evidence; both for the prosecution. Ms Manukau elected not to give evidence or call evidence.
[5] The evidence of the owner of the car, Mr Singh, was read by consent. He said that on 1 February 2021, while at his work in Ngatea, he noticed that his Mazda Demio was missing from its parking space outside. He reported it as stolen.
[6] The second witness was Constable Martel, who was one of the officers who stopped the car in Manukau. He gave evidence of the events in the early hours of 10 February 2021 when the car was stopped. He also conducted an electronically recorded interview (“EVI”) with the driver, Ms Manukau, an hour or so later.
1 Police v Manukau [2021] NZDC 25852.
2 Crimes Act 1961, s 246. Maximum penalty depends on the value of property received, as set out in s 247.
3 Police v Manukau DC Manukau CRI-2021-092-1358, 21 January 2022.
[7] The stolen car came to the attention of the Police after it was picked up by an Automatic Number-Plate Recognition (“ANPR”) camera in Manukau. The APNR identified a car with number plates, GSL537, which had been reported as stolen.
[8] This information was relayed to the Police. Constable Martel, who was on duty in the area, identified a Mazda Demio bearing these registration plates travelling south towards Manurewa. The Police pulled the car over. Constable Martel saw a screwdriver stuck in the ignition. A glass quarter window at the rear was missing. The registration card on the windscreen was for a 2002 Toyota Gaia, registration number EYZ12.
[9] Ms Manukau was driving the car and her brother, Mr Hadfield, was in the front passenger seat.
[10] Ms Manukau was arrested by Constable Martel and taken to the Manukau Police Station where she underwent an EVI.
[11]Set out below are the relevant portions from the interview:
“Constable Martel Um, yeah, so tell me everything about you and this
vehicle?
Ms Manukau Well [inaudible] picked it up an hour before yous had
stopped me. And that was from sister-in-law Katana. In yeah Pap– oh Papatoetoe I picked it up Mangere
…
…
Constable Martel … right you’ve said Papatoetoe or Mangere ah
[inaudible]
Ms Manukau Like it was like, kinda [inaudible] Constable Martel Oh right in between?
Ms Manukau Yeah.
Constable Martel Um who is your sister-in-law? Ms Manukau Katana …
…
Constable Martel And what’s Katana’s last name?
Ms Manukau Mm Katana. She’s gotta different name on Facebook.
…
Constable Martel Ok. And what were going to use it for? Ms Manukau [Inaudible] home.
…
Oh I was only gonna get dropped off home.
…
It was only around the corner from where you stopped me.
…
Constable Martel … and when we’ve come to a stop at the Mobil gas
station we’ve obviously seen in the ignition a screwdriver … and the rear left … passenger side quarter glass has been smashed … whadda you make of this … what can you tell me about that?
Ms Manukau Oh well she said it was stolen from her so yeah.
…
Constable Martel … when you were speaking to Katana about the car
what.
Ms Manukau ‘Cause I go why is it like … [inaudible] dodgy.
…
looking yeah she was like oh now someone tried to steal it…
…
Yeah ‘cause I looked it up [inaudible] and it wasn’t stolen [inaudible] so.
Constable Martel Okay. So, she’s claiming it to be her own and … Ms Manukau Yeah.
Constable Martel … it was stolen from her recently? Ms Manukau Yeah.
…
Constable Martel Okay. Right so when you did receive that, yeah
seeing the screwdriver. You believed Katana you know and her story of it being st– stolen off of her?
Ms Manukau Yeah.
…
Constable Martel Right so when you arrived was it already on? Ms Manukau Yeah.
Constable Martel Okay how long were you at um her house? Ms Manukau Like half an hour.
Constable Martel Right and where was the car at the time? Ms Manukau Ah around the back of her house.
…
Constable Martel Okay. And Katana you’re saying is your sister-in-law.
Where do you know an address of where you picked it up?
Ms Manukau Mmm. [inaudible]. I dunno what street it is but
[inaudible] Lodge.
…
We just call it the Lodge.
Constable Martel Yeah well considering that there are screwdrivers
there the quarter glass is broken, wouldn’t you have thought that it’s a bit, you know silly to be driving a vehicle like that?
Ms Manukau But it didn’t come up as stolen when I looked it up so.
…
So I’s just like oh yeah must be true.
Constable Martel Okay. How long have you known Katana for? Ms Manukau I dunno.
…
Two, three months.
Constable Martel Okay. And this is the first time you’ve seen that car? Ms Manukau Yeah.
…
Straight up.
Constable Martel Okay. Right so after driving home your plan was to. Ms Manukau Get dropped off.
Constable Martel So drop um go home and then what was the plan with
the vehicle after that?
Ms Manukau I was only getting dropped off.
Constable Martel Oh [inaudible] so you were but you were driving? Ms Manukau Yeah.
…
[inaudible] got the licence.
…
I just wanted to go home.”
District Court decision
[12] The Judge identified three elements of the charge the prosecution had to prove beyond reasonable doubt:
(a)the vehicle was stolen or obtained by any other imprisonable offence;
(b)Ms Manukau received the vehicle from another person; and
(c)when Ms Manukau received the vehicle, she was reckless as to whether or not it had been stolen or so obtained. Recklessness in the context of s 246 of the Crimes Act 1961 required the conscious taking of an unreasonable risk.
[13] The Judge noted the defence did not dispute that Ms Manukau had received the vehicle, nor that the vehicle was stolen. The sole element in dispute, therefore, was whether Ms Manukau, when she received the vehicle, was reckless as to whether it was stolen or so obtained.
[14] The Judge was satisfied the prosecution had made out that element. He deemed the combination of the following factors proved Ms Manukau’s recklessness to the requisite standard:
(a)Ms Manukau received the car at an unusual time (the early hours of 10 February 2021);
(b)she received it from her sister-in-law “Katana”. She knew neither Katana’s last name nor her address;
(c)at the time of receipt, the car had a screwdriver in the ignition, not keys. The back-quarter glass was removed. The identifying marks of the original vehicle had been removed. The number plate on the vehicle had been stolen;
(d)Ms Manukau had, herself, admitted the car was “dodgy-looking”; and
(e)the Judge considered it implausible in all the circumstances that Ms Manukau would have, as she told the Police, made enquiries on receiving the vehicle about whether it was stolen. He rejected the defence’s claim that she had made such an enquiry.
[15] Accordingly, with the third element proved, and the first two elements not in dispute, the Judge found Ms Manukau guilty of receiving.
Approach on appeal
[16] Section 232 of the Criminal Procedure Act 2011 governs appeals against conviction. This Court must allow the appeal if satisfied the Judge erred in his or her assessment of the evidence such that a miscarriage of justice has occurred, or if a
miscarriage of justice has occurred for any reason.4 A miscarriage of justice includes any error, irregularity or occurrence in or in relation to or affecting the trial that:5
(a)has created a real risk the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[17] A real risk arises if there is a reasonable possibility the Judge would have delivered a more favourable verdict if nothing had gone wrong.6
[18] Where, as is the case here, the appellant challenges the lower Court’s factual findings, the appellant must generally satisfy the appeal Court that:7
(a)the conclusion of the lower Court was not open to it on the evidence; and
(b)the lower Court was plainly wrong in the conclusion reached.
[19] The most comprehensive, recent formulation on the correct approach to an appeal under s 232(2)(b) against a Judge-alone trial verdict involving challenges to the Judge’s factual findings is the Supreme Court’s decision in Sena v R.8 There, William Young J held that although the appellant is required to show error, the appellate Court is required to form and act on its own assessment of the evidence.9 If the appellate Court comes to a different view on the evidence, the trial Judge will necessarily have erred and the appeal must be allowed.10
4 Section 232(2)(b)–(c).
5 Section 232(4).
6 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
7 Rae v International Insurance Brokers (Nelson Malborough) Ltd [1998] 3 NZLR 190 (CA) at 197.
8 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.
9 At [20] and [26].
10 At [38].
[20] Section 232(2)(b) requires a focus on the Judge’s assessment of the evidence, which presupposes the existence of reasons from which the substance of that assessment can be discerned.11 A Judge’s reasons should demonstrate:12
“… an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.”
[21] Having said that, an appellate Court must take into account any advantages a trial Judge may have had, particularly where the challenges are to credibility findings based on contested oral evidence. In such circumstances the appellate Court will exercise “customary caution”.13
Application to admit new evidence on appeal
[22] Before embarking on an analysis of the evidence and the Judge’s reasoning, it is necessary to identify the new evidence which the appellant seeks to adduce on this appeal and determine its admissibility.
[23] Mr Young, for Ms Manukau on instructions from Mr Wiles, advanced the appeal in part on the basis of fresh evidence (the previously undisclosed information) in the form of:
(a)the notebook entry of Constable Alex Turner, dated 10 February 2021, recording his questioning of Mr Hadfield when apprehended by Police; and
(b)the transcript of Mr Hadfield’s EVI with Constable Turner, also on 10 February 2021.
[24] Mr Young submitted that both the notebook entry and the EVI are fresh evidence. Although he did not expand on the reason for their non-disclosure at trial, Mr McDonald, for the Police, accepted that the non-disclosure was in error and that the evidence was fresh and cogent and thus could be admitted on the appeal. Although
11 At [28].
12 At [36].
13 At [38].
he did not concede that had it been before the Judge, it would have caused him to arrive at a different decision.
[25] I agree the evidence is “fresh” in the sense that term is understood.14 I also agree it is cogent. The effect of its admission is a different question which is dealt with later in this judgment.
[26]I am satisfied the evidence should be admitted on appeal and rule accordingly.
The new evidence
[27] As noted, Mr Hadfield was also interviewed, both at the scene and later by EVI at the Manukau Police Station. Both records of interview were attached to Ms Manukau’s affidavit filed in support of the application to admit the new evidence.
[28] The relevant portions taken from Constable Turner’s notebook of his interview when he spoke with Mr Hadfield after the car was stopped are as follows:
“Constable Turner How long have you been a passenger in this vehicle? Mr Hadfield Maybe an hour.
Constable Turner Where were you when you first entered the vehicle? Mr Hadfield Mangere.
Constable Turner Who do you think owns the vehicle … Mr Hadfield My sister-in-law Santana.
Constable Turner Did you suspect that the vehicle might have been
stolen as it has a broken quarter light window and a screwdriver in the ignition?
14 See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120] where the Privy Council commented that “the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.”
Mr Hadfield No, because my sister-in-law, Santana, told me that
she brought it with the keys, then it was stolen from her and then she got it back.
Constable Turner Where does Santana live?
Mr Hadfield I don’t know. She lives everywhere.”
[29] Mr Hadfield was taken to the Manukau Police Station where the EVI was conducted by Constable Turner. The relevant portions of that interview follow:
“Constable Turner … what I’m wanting to ask you is how you is … how
you came about to be the passenger of that vehicle, and whether you knew it was stolen …
Mr Hadfield No.
Constable Turner No, why? So, the vehicle … broken rear quarter light
window.
…
… and a screwdriver in the ignition.
…
… why did you not think it was stolen?
Mr Hadfield Because the story that was given to us was made to
be believable.
Constable Turner … So, who gave you the story that you believed that
it wasn’t stolen?
Mr Hadfield Um, my sister-in-law.
Constable Turner … Who’s your sister-in-law? Mr Hadfield Santana.
Constable Turner What’s her last name? Mr Hadfield I have no idea.
…
Constable Turner … so what did Santana tell you about the vehicle?
Mr Hadfield … that she had purchased oh, that she had bought the
car … and the car was sold to her. She had the keys, and then the car was stolen from her, and then when she got it back it’s how she had to drive it around until she got it fixed.
…
Constable Turner … When did she buy the car? Mr Hadfield … I don’t know. She didn’t say. Constable Turner … When did it get stolen?
…
Don’t know?
Mr Hadfield No.
Constable Turner … how long had you been in that vehicle for? Mr Hadfield About an hour.
…
Constable Turner Had you been in that vehicle before? Mr Hadfield … Yep.
…
… I think from the last three days, maybe yeah. She picked me up, and taken me places.
Constable Turner Who?
Mr Hadfield Santana.
Constable Turner Okay. Where did she take you?
Mr Hadfield … shopping and stuff ‘cause I don’t have a vehicle of
mine … she had a ride, so I asked her.
…
Constable Turner … prior to myself and my partner stopping you at the
Mobil gas station … in Clendon Park, where were you then an hour earlier? Where did you come from?
Mr Hadfield Mangere.
…
Constable Turner … Whereabouts in Mangere? Mr Hadfield Do I have to give an address? Constable Turner You don’t have to.
Mr Hadfield I don’t want to say it.
…
Constable Turner Okay. Oh, and … where does Santana live? Mr Hadfield She lives all over the place.
Constable Turner She does have a, a house that she rents or stays at
regularly?
Mr Hadfield Nah
…
Could be anywhere.
…
Constable Turner Okay … you’re sure that you didn’t think that vehicle
was stolen?
Mr Hadfield I’m positive. I don’t [inaudible]. Constable Turner Yeah, you fully believe Santana? Mr Hadfield Yep.”
[30]Mr Hadfield was not charged and was permitted to leave.
Approach to analysis
[31] Before me, the focus of Mr Young’s challenge was on whether the Judge was correct to reject Ms Manukau’s account as taken from her EVI. He accepted that if this Court on appeal was to determine that all the evidence, including the new evidence, does indeed provide a sufficient evidential foundation to reject Ms Manukau’s account, it is unnecessary to move on to consider whether when she received the car she was reckless as to whether it had been stolen. He accepted that the balance of the evidence was sufficient to prove that element.
[32] Accordingly, the approach to deciding the core question on this appeal requires me to first consider whether, on the evidence before him at trial, the Judge was correct to reject Ms Manukau’s account. If the answer to that question is no, the appeal must be allowed because there would be a real risk the outcome of the trial would have been affected or an unfair trial resulted. Only if the answer is yes, is it necessary to move on to consider the second question. That is whether the new evidence changes the
conclusion that the evidence at trial provided a sufficient evidential or factual foundation to reject Ms Manukau’s account.
Was the Judge correct on the evidence before him to reject Ms Manukau’s account?
[33] Mr Young submitted that the way the Judge framed the central issue in giving his reasons was incorrect. The Judge emphasised it was clear the vehicle had been stolen. However, the criticism is that he did not explain whether it was reckless for Ms Manukau to have accepted her sister-in-law’s explanation in the circumstances, nor whether Ms Manukau’s explanation and her subsequent attempts at due diligence were credible. He noted that the defence had always accepted the car was stolen. That issue had no bearing on the question of recklessness.
[34]He further submitted that the Judge erred in:
(a)finding Ms Manukau’s enquiries on the car’s status after receiving it implausible;
(b)drawing an adverse inference from the fact the car was lent to Ms Manukau after midnight;
(c)drawing an adverse inference from the fact the vehicle’s identifying marks had been removed and that the car displayed the incorrect registration details; and
(d)finding as fact that Ms Manukau did not know her sister-in-law’s last name.
[35] Mr McDonald submitted that the Judge did not err by disbelieving Ms Manukau’s narrative given that it was inherently unlikely in the context of the other evidence before the Court.
[36]I agree with Mr McDonald for the reasons he advanced.
[37] First, on Ms Manukau’s own admission the car was “dodgy looking”. As a consequence, she claimed that she asked her sister-in-law why that was. The explanation she claimed she was given was unlikely and improbable. Ms Manukau accepted as much because she told Constable Martel she undertook a search to check if the car was stolen.
[38] Secondly, and relatedly, in terms of the Court of Appeal’s comments in Cullen v R there were “obvious warning signs”.15 This put her on notice to make further inquiries. She claimed she did. She said she “looked it up” and “it wasn’t stolen”. She gave no further details as to how and where these inquiries were conducted. The Judge was correct to reject this explanation. Any search would likely have revealed that the vehicle was stolen because a short time after the alleged search an ANPR camera detected the vehicle. Furthermore, this claim needs to be viewed in the context of all the circumstances which, for the reasons that follow, I am satisfied are inherently implausible.
[39] Ms Manukau does not appear to have asked her sister-in-law the sorts of obvious questions one might have expected of someone who was making a genuine attempt to assess the risk of the car being stolen. For example, she did not ask where and when the car was purchased, how much she paid for it or who she bought it from. Nor did Ms Manukau undertake the most obvious of due diligence checks expected of someone in her position. She did not compare the number plates on the car with the registration card on the windscreen. Had she done so it would have been immediately obvious that they did not match. The alpha-numeric details on the registration plates did not match those on the registration card and the details on the registration card were for an entirely different make and model and year of car. Less convincing in my view is the Judge’s finding of an adverse inference to be drawn from the car’s identifying details being removed, unless this was a reference to the mismatch between the registration plates and the registration card. The Vehicle Identification Number was still intact at the time the car was recovered. It was these details which permitted the Police to trace the registered owner.
15 Cullen v R [2014] NZCA 325, [2014] 3 NZLR 471 at [12].
[40] As to the context and circumstances, the Judge observed, correctly in my assessment, that while “no one piece of evidence is necessarily conclusive … in combination they clearly establish, to a sufficient standard, Ms Manukau’s necessary recklessness”. That combination of circumstances included the timing of these events (that is the late hour), the borrowing of the car to get home, the uncertainty and vagueness of her sister-in-law’s name and residential details, and the car being parked around the back of the house with its engine running. Mr Young’s other criticisms of the Judge’s findings would have some force if they each stood alone. But that is not how the Judge treated them.
[41] Finally, it should not be overlooked that Ms Manukau’s account to Constable Martel was not on oath. She elected not to give evidence. Her version of events was never tested in cross-examination. In the circumstances of this trial the Judge was entitled to accord it less weight than if it had been given on oath.
[42] For these reasons I am satisfied the Judge was correct to reject Ms Manukau’s account on the question of recklessness. Having so found, I turn to consider whether the admission of the new evidence changes that assessment.
Does the new evidence change the assessment that the evidence at trial provided a sufficient evidential or factual foundation to reject Ms Manukau’s account on the issue of recklessness?
[43] The essence of Mr Young’s submission on this point is that had the new evidence been available at trial, it would have materially affected the body or pool of evidence available to the Judge, such that its omission has created a real risk the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity.
[44] In particular, Mr Young submitted that Mr Hadfield’s account to Constable Turner “reinforced” Ms Manukau’s account. He supported Ms Manukau’s claim of what their sister-in-law had said about the car and its provenance. Mr Hadfield’s account also supported his sister’s vagueness around their sister-in-law’s name and address because he was similarly uncertain.
[45] While it is regrettable that the undisclosed information was not before the Judge, I cannot accept its omission led to a miscarriage of justice. My reasons follow.
[46] First, while Mr Young is correct that Mr Hadfield’s evidence if given in accordance with his EVI would have supported Ms Manukau’s account of what their sister-in-law said about the car, the Judge did not approach his assessment on the basis that Ms Manukau’s account of what her sister-in-law told her was never said. The position might have been different had the Judge determined that he did not believe Ms Manukau’s account of what her sister-in-law had told her about the car. However, the Judge’s decision did not turn on that finding. The Judge appears to have accepted Ms Manukau’s evidence as to how her sister-in-law explained the provenance of the car. What the Judge did not accept was Ms Manukau’s explanation for why she believed the car was not stolen.
[47] Secondly, the Judge’s findings on the inadequacy of Ms Manukau’s due diligence apply with equal force to Mr Hadfield’s evidence. Had he given evidence it is inevitable these deficiencies would have been explored in cross-examination. He would have been asked about these not only in relation to himself but also his sister. The adverse consequence to Ms Manukau’s defence would likely have been considerable.
[48] Thirdly, I accept there is some force in Mr Young’s submission that Ms Manukau’s vagueness around her sister-in-law’s details would have been shared by her brother, with the effect that Ms Manukau’s credibility would have been enhanced (rather than the Judge making the adverse inferences he did). However, Mr Hadfield’s own credibility would not have been enhanced by the patent reluctance he revealed when he declined to answer questions about where they had come from before they were picked up by the Police. Similarly, Mr Hadfield’s failure to ask his sister-in-law about how she acquired the car, or to make any attempt to reconcile the registration plates with the registration card, are such that even had he given evidence the Judge would almost certainly have put his evidence to one side in the same way he did Ms Manukau’s explanation.
[49] Fourthly, nothing in Mr Hadfield’s evidence, had it been led at trial, would have affected the way Constable Martel would have been cross-examined or, had he been called, any cross-examination of Mr Singh.
[50] Finally, as for Mr Hadfield’s opinion that the car was not stolen, that is irrelevant and, plainly, inadmissible.
[51] For these reasons I am satisfied that even if Mr Hadfield’s evidence had been available to the Judge, the result would have been the same. It follows that justice has not miscarried and the conviction should stand.
Result
[52]The new evidence is admitted on appeal.
[53]The appeal against conviction is dismissed.
Moore J
Solicitors:
Mr Wiles, Auckland Crown Solicitor, Manukau
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