Marino v Police - [2017] NZHC 1348

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2017-418-000003 [2017] NZHC 1348

BETWEEN
TOA TOKOMARU MARINO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 June 2017

Appearances:

A J Bailey for Appellant (by way of audio visual link and telephone from Greymouth)

C J Bernhardt for Respondent

Judgment:

19 June 2017

JUDGMENT OF GENDALL J

Introduction

[1] On 25 November 2016, the appellant was convicted by Judge Saunders in the

District Court at Greymouth on a charge of receiving stolen property (over $1000).1

The appellant appeals against that conviction. The charge related to four items of property which had been stolen from the complainant’s house. The complainant found some of these items in the appellant’s possession later that day. A principal submission from the appellant on this appeal is that a miscarriage of justice has occurred because the required elements of the charge were not made out beyond reasonable doubt.

[2] The respondent opposes this appeal and contends on this aspect that no miscarriage of justice occurred here.

1 Police v Marino [2017] NZDC 11499.

Factual background

[3] The complainant came home one afternoon to find that his house had been broken into and a television, a laptop and two tablets had been stolen. The complainant reported that matter to police. He also engaged in some investigations of his own which led him to the house of the appellant, a man he knew.

[4] The complainant confronted the appellant, who greeted him at the door with a baseball bat in a threatening way. Nonetheless, the complainant demanded information about his property which had been taken. In his evidence the complainant said:

Oh he was swinging a baseball bat trying to intimidate us telling us to F… off and he reckoned he didn’t steal it, that somebody else has stolen the gear and had his car, but he ended up bringing out a 40 inch TV that was mine.”

So, the complainant recovered his television set and, on a second visit, he recovered the two tablets. The appellant, however, told him that the laptop had a crack in the screen so in his words it had been “biffed” into a river. The appellant did not say who had “biffed” it in the river.

[5] The complainant then reported this information to the Police, which led to the present charge being one count of receiving being laid.

District Court decision

[6] At trial, the appellant through his counsel appears to have disputed the interaction between himself and the complainant. Counsel suggested that the Court could not safely convict the appellant on the charge of receiving as, amongst other things, there was evidence that he could have been the burglar. An element of the charge of receiving is that the property must be received from another person and if a Judge is unsure whether a defendant was the burglar or the receiver, the defendant is
entitled to be acquitted – R v Cruden.2 In this case Judge Saunders considered
generally that…

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] NZHC 1348
Decision Date: 19 June 2017

CaseChat Overview and Summary

The case of Marino v Police involved Toa Tokomar Marino, the appellant, who appealed against his conviction in the District Court at Greymouth for receiving stolen property, over $1000. Marino was charged with receiving four items of property that had been stolen from the complainant's house. The complainant found some of these items in Marino's possession later that day. Marino argued that a miscarriage of justice had occurred because the required elements of the charge were not made out beyond reasonable doubt. The central legal issues were whether the charging document was defective, whether the value of the stolen property exceeded $1,000, and whether it was proven that Marino received the stolen items from another person.

The court examined whether the charging document was defective by considering whether a single charge could relate to multiple items. The court found that there was nothing in the relevant statute requiring the term "property" to be interpreted as a single item, and that the charge was commonly laid in relation to multiple items. The court further found that even if the charges should have been laid separately, the outcome would not have been more favourable for Marino. The court then addressed the value of the stolen property and found that the complainant's uncontradicted evidence was sufficient for the judge to determine that the value of the items exceeded $1,000. Finally, the court considered whether it was proven that Marino received the stolen items from another person. The court found that there was evidence to support that Marino had received the items, as opposed to being the burglar himself. Thus, the court concluded that Marino had not demonstrated that a miscarriage of justice occurred.

In conclusion, the appeal was dismissed, and the conviction of Marino for receiving stolen property was upheld. The court found that the charging document was not defective, the value of the stolen property exceeded $1,000, and it was proven that Marino received the stolen items from another person.

Orders