Marino v Police

[2017] NZCA 594

IN THE COURT OF APPEAL OF NEW ZEALAND

CA398/2017
[2017] NZCA 594

BETWEEN	TOA TOKOMARU MARINO Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Clifford, Dobson and Collins JJ

Counsel:

A J Bailey for Appellant
H G Max for Respondent

Judgment:

(On the papers)

15 December 2017 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to bring a second appeal is granted.

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. Mr Marino was convicted after a trial before a Judge alone in the District Court at Greymouth on one charge of receiving a 40 inch television, a laptop, and two tablets together valued at approximately $3,000.  Mr Marino was sentenced to 120 hours’ community work and ordered to pay $1,300 reparation.[1]  Mr Marino challenged his conviction but not his sentence.  His conviction was upheld by the High Court.[2]  Mr Marino now seeks leave to bring a second appeal against his conviction. 

   [1]New Zealand Police v Marino [2017] NZDC 9133.

   [2]Marino v New Zealand Police [2017] NZDC 1348.

2. Mr Marino requires an extension of time to do so.  The delay in filing the notice of appeal is minimal and Mr Marino has provided an explanation.  We therefore grant the application.

3. Section 237(2) of the Criminal Procedure Act 2011 provides this Court must not grant leave for a second appeal unless it is satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur if the appeal is not heard.  This Court’s decision in McAllister v R confirms that test is a high one.[3]

   [3]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

4. Mr Marino argues a miscarriage of justice has occurred in his case because:

   (a)Unlawfully, the charging document dealt with four items.  Because a charge must relate to a single offence there should have been a separate charging document for each item.  The Judge was satisfied, on the basis of the complainant’s evidence, that the goods would have had a current value exceeding $1,000.  There was, however, no valuation evidence.  It was therefore possible that no one item exceeded $1,000.  By dint of the charging error, Mr Marino had been convicted of a more serious charge than he should have been.

   (b)The District Court could not have been satisfied, that Mr Marino had received, rather than stolen, the goods in question.  On the authority of R v Cruden his conviction was, therefore, not safe.[4]

Analysis

The first ground

[4]R v Cruden [2007] NZCA 537.

1. The offence of receiving is codified by s 246 of the Crimes Act 1961.  There is no reference in s 246 to the value of the property involved.  Pursuant to s 247, a person found guilty of receiving is liable to a term of imprisonment:

   (a)not exceeding seven years, if the value of the property received exceeds $1,000;

   (b)not exceeding one year, if the value of the property received exceeds $500 but does not exceed $1,000; or

   (c)not exceeding three months, if the value of the property does not exceed $500.

2. The provisions of s 247 do not establish offences of different seriousness.  Rather they codify, in part, the application of the principle that all sentencing proceeds on the basis of a proper assessment of a defendant’s culpability.  Whether included on one charge or not, it is the total value of the received goods that here determined culpability.

3. This ground of appeal neither raises a question of public interest nor involves any suggestion of a miscarriage of justice. 

The second ground

1. In Cruden this Court confirmed that:

   (a)Possession of recently stolen property is, in the absence of an explanation that might be true and would negative guilt, sufficient evidence to justify a finding that the possessor is either the thief or a dishonest receiver.[5]

   (b)But, theft and receiving are true alternative charges.  A person cannot be guilty of theft and receiving in relation to the same items of property.  That is, a person cannot receive from themselves.[6] 

   (c)Accordingly, where alternative charges are laid, a jury must acquit on both unless one can be proved beyond reasonable doubt to the exclusion of the other.[7]  As was the case in Cruden, where only one of those alternative charges is laid, if an explanation of culpability for the other was a reasonable possibility, acquittal on the charge laid must follow.

   [5]R v Cruden, above n 2, at [9].

   [6]At [11].

   [7]At [12].

2. The complainant’s evidence was that Mr Marino, when confronted by him, denied having stolen the goods.  Under some pressure, Mr Marino nevertheless immediately returned the television: some hours later he returned the two tablets, and advised the complainant that the laptop had been thrown in a river.  In cross‑examination, defence counsel unsuccessfully challenged that narrative.  The Judge accepted the complainant’s account.  Mr Marino did not give evidence. 

3. Mr Marino asserted he had not stolen the goods: he nevertheless was in possession of them and they were recently stolen.  Although a vehicle associated with Mr Marino had been seen in the vicinity of the burgled property at a relevant time, there was no evidence indicating directly that Mr Marino was the burglar.  There was neither an error of law nor a risk of miscarriage in a conviction for receiving in those circumstances.

Result

1. The application for an extension of time to apply for leave to bring a second appeal is granted.

1. Mr Marino’s application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent