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

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.
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.
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.
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.

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…

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: [2017] NZCA 594
Decision Date: 15 December 2017 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Toa Tokomarau Marino to bring a second appeal against his conviction for receiving stolen property. Marino was initially convicted in the District Court and his conviction was upheld by the High Court. Marino sought leave to appeal to the Court of Appeal a second time, but required an extension of time to do so. Marino argued that his conviction involved a miscarriage of justice due to a charging error and because the District Court could not have been satisfied that he received, rather than stole, the goods in question.

The Court of Appeal considered whether Marino's application for a second appeal involved a matter of general or public importance, or a miscarriage of justice may have occurred or may occur if the appeal was not heard. The Court found that Marino's first ground of appeal did not raise a question of public interest or involve any suggestion of a miscarriage of justice. The Court also found that Marino's second ground of appeal was without merit, as there was no evidence indicating directly that Marino was the burglar and there was no error of law or risk of miscarriage in the conviction for receiving.

The Court granted Marino's application for an extension of time to apply for leave to bring a second appeal but declined his application for leave to bring a second appeal. The Court held that the appeal did not involve a matter of general or public importance, or a miscarriage of justice.

Orders