Marino v Police
[2017] NZHC 1348
•19 June 2017
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 the police were entitled to choose to prosecute on the basis that the appellant, as the person in receipt of the property, was either the thief or a receiver of
2 R v Cruden [2007] NZCA 537.
stolen goods, and the police had chosen the latter course. Judge Saunders accepted the complainant’s evidence despite it being subject to rigorous challenge by counsel for the appellant. He found that there was clear evidence that the appellant had handled the property and knew about the items at the time he had control over them, he was in possession of the television, able to recover the tablets and knew that the laptop had been thrown in a river.
[7] Based on this evidence and acknowledgements the appellant had made to the complainant, the Judge determined that an inference could be reached that the appellant had received these items and he had sufficient knowledge that they had been stolen by others or was reckless to that fact. The Judge was further satisfied particularly on the basis of the complainant’s evidence that the items were of a value in excess of $1,000. Therefore, he found the elements of the receiving charge were proven beyond reasonable doubt and convicted the appellant.
Principles on appeal
[8] Section 232 Criminal Procedure Act 2011 provides that the High Court may only allow an appeal if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any other reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an
unfair trial.3
[9] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a “real risk” that the outcome was affected. R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone
wrong.”4
3 Section 232(4).
4 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
[10] In R v Condon the Supreme Court held that a mere departure from good practice does not render a trial unfair.5 Instead the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.6
[11] This appeal proceeds by way of rehearing, and this Court, as the Court on appeal, must examine Judge Saunders’ reasoning carefully and come to its own decision on the facts.7 However, it is generally only in exceptional circumstances that a court on appeal will interfere with the trial Judge’s findings of fact.8
Submissions
Appellant’s submissions
[12] In support of his present appeal, the appellant contends that:
(a) The charging document in this case was defective because it alleged four charges within one charge. Therefore the appellant says he was wrongly convicted;
(b)There was insufficient evidence to establish that the stolen property exceeded $1,000 in value; and
(c) There was insufficient proof to establish beyond reasonable doubt that the appellant received the stolen items from another person.
[13] As to the first ground outlined above, the appellant suggests that four separate charges should have been laid for each item as they may have been separately received and they were entirely separate items.
[14] And as to the second ground noted above, the appellant maintains that the evidence did not establish beyond reasonable doubt that the combined values of the
5 Condon v R [2006] NZSC at [78].
6 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R at [78].
7 R v Slavich [2009] NZCA 188.
8 Rae v Police HC Hamilton CRI-2006-419-162 at [38].
items exceeded $1,000 in value, a mark necessary to prove one of the elements of the receiving charge laid. The only evidence on this he says was the complainant’s recollection of what he had paid for the items. The point is made that electronic items generally devalue quickly. There was also no evidence as to when the complainant purchased these items or their current value. As the value of the items stolen is an aspect of the charge of receiving, the appellant submits that the charge cannot be said to have been established beyond reasonable doubt.
[15] The appellant’s final and probably what is, in my view, his principal ground of appeal is that there was insufficient proof that he received the items from another person, this also being an essential element of the charge here. The appellant submits that the Judge disregarded the established position that theft and receiving are separate and alternative charges. Instead, the Judge, it is said, convicted because he was simply satisfied that the appellant was criminally involved in some way, although he was unsure as to exactly how. Counsel submits that the evidence may point more towards the appellant being the burglar, rather than a receiver. Therefore his conviction for receiving is unsafe.
Respondent’s submissions
[16] In response, first, the respondent suggested that the charging document was not defective. Before me, counsel said a single charge of receiving can relate to several items whilst still complying with the wording of the section. The respondent submits that one charge was appropriate here because the appellant, in a single act, received the four items on the same day in relation to a single burglary. And Mr Bernhardt on behalf of the respondent suggested that there was no prejudice in having a single charge here as the same defence was advanced in respect of each of the items.
[17] Next, the respondent addressed the second appeal issue and maintained that the complainant’s evidence about the value of the property was clear and it was not contradicted in any real way. It was therefore open to the Judge to find that the value of the items exceeded $1,000.
[18] And finally, the respondent noted that there was evidence before Judge Saunders that the appellant was the receiver rather than the burglar. Counsel pointed again to the evidence given by the complainant about what the appellant said to him:
… he reckoned he didn’t steal it, that somebody else has stolen the gear and had his car … I asked him where the laptop was and he said that it got biffed because it had a crack in the screen…
[19] The respondent noted, too, the appellant’s claim that the laptop had a crack in the screen. The complainant said that there had not been any crack, although some pixels were broken in the top corner. The laptop arguably it seems was in a different condition when it came into the appellant’s possession than when it was stolen. The respondent submits that this is likely to indicate that someone was in possession of it before the appellant.
Law
[20] The three elements of receiving under s 246 Crimes Act 1961 are:
(a) The property has been stolen (or otherwise illegally obtained); (b) The defendant received the property from another person;9 and
(c) The defendant received the property knowing it to be stolen (or
illegally obtained), or being reckless to that possibility.
[21] The prosecution must also allege and establish the value of the property received, as that value determines the maximum penalty available.10
[22] On appeal, the appellant does not appear to dispute that the element noted at [20](a) above has been satisfied, nor that he knew the property had been stolen.
9 R v Seymour [1954] 1 WLR 678, [1954] 1 All ER 1006 (CA).
10 Cullen v R [2012] NZCA 413.
Analysis
Was the charging document defective?
[23] Section 17(1) Criminal Procedure Act 2011 provides that “a charge must relate to a single offence”. The appellant argues that there should have been four separate charges of receiving because the four items were entirely separate devices. This matter was addressed at trial. Judge Saunders considered that, while there was some authority that separate charges may be laid, a single charge was “the practical and pragmatic step” given that the items were stolen from one property in a single incident.
[24] I am satisfied there is nothing in s 246(1) Crimes Act 1961 that requires the term “property” to be interpreted as a single item. This charge is commonly laid in relation to multiple items.11
[25] The appellant submits that the (alleged) error resulted in a miscarriage of justice because the combined value of the property meant that he was subject to a higher penalty than if there had been four separate offences at lesser values.12 Even if the charges should have been laid separately, the result of the alleged error would not have lead to a more favourable verdict as the Judge would have still been lead to make the same findings as to the appellant’s guilt.
[26] Furthermore, the appellant has ultimately been sentenced to 120 hours community work.13 Had there been multiple charges laid for items of lesser value, the sentencing outcome would likely have been the same.
[27] I find there is no defect in the charging document here. This ground of appeal fails.
11 For example: R v Birkinshaw [2016] NZHC 2257 where one charge was laid for a number of different items received over a period of a couple of months; Singh v Police [2016] NZHC 1739 where two charges were laid which covered a range of electronics; and Andrews v Police [2015] NZHC 2496 where one charge was laid for the receipt of two items stolen in the same burglary.
12 Section 247 provides that the maximum penalty for receiving property over $1,000 is 7 years imprisonment, whereas the maximum penalty for receiving property between $500 and $1000 is only 1 year imprisonment.
13 Police v Marion [2017] NZDC 9133.
Did the property’s value exceed $1,000?
[28] The complainant stated in evidence that the television was worth about
$2,500 when purchased, that the laptop was worth about $1,500 (off the top of his head), that one of the tablets was worth about $500 and that he was not sure about the price of the second tablet.
[29] This was the only evidence provided about the value of the stolen items and it was uncontradicted. The appellant did not challenge these values at trial. Therefore it was open for the Judge to find that the value of the items combined exceeded
$1,000.
[30] The appellant has not on appeal demonstrated in any real way that the values of the items might have been less than $1,000. On the evidence which was before the District Court, I am satisfied the total value would have exceeded this amount, even taking into account any depreciation in the value of this property from the respective times of purchase.
[31] The Judge did not err in determining that the items found in the appellant’s
possession exceeded $1,000 in value. Therefore this ground of appeal also fails.
Was the element of receiving from another person made out?
[32] The doctrine of recent possession provides that:14
If a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that that person either stole the property or received it from the thief.
[33] While recent possession may indicate that the defendant committed either receiving or theft, the defendant can only be convicted of one offence or the other if the fact-finder is satisfied beyond a reasonable doubt as to which offence was
actually committed.15 This is in contrast to the Australian position where a defendant
14 Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CA219.09(1)], referencing
R v York (2005) 193 CCC (3d) 331 (BCCA).
15 R v Sizemore CA290/05, 5 December 2005, where the Court followed the approach of the Privy
Council in Attorney-General of Hong Kong v Yip Kai-foon [1988] AC 642, [1988] 1 All ER
153 (PC).
can be convicted of the lesser offence if neither can be proven beyond reasonable doubt.16 Therefore if, as here, only receiving has been charged, as I have noted above, the prosecution must prove to the required standard that this was the offence committed, not theft.17
[34] On this the appellant endeavours to suggest here that there was no evidence that the appellant received the stolen goods from another person. Counsel submits that the evidence, if anything, better points to the appellant being the thief and, therefore, the charge of receiving could not be made out on the evidence. As outlined above, counsel has suggested that the Judge made the findings the way he did simply because he was satisfied that the appellant was criminally involved and wanted to punish him for that.
[35] I do not accept this argument here, however. As the respondent points out, there is evidence that points towards the appellant receiving the goods, rather than his being the burglar. When confronted by the complainant, the appellant intimated that someone else had stolen the goods. The clear inference from that must be that he received the items in question. Furthermore, the respondent’s description of the laptop as having a cracked screen does not match with the complainant’s description of the laptop as having some broken pixels in one corner. This indicates that the laptop was in a different condition when it was stolen, from when the appellant came into possession of it, a position not contradicted in any of the evidence before the District Court.
[36] For this appeal to be allowed, the Court has to be satisfied that the Judge erred in assessing the evidence about the appellant’s role as a receiver to such an extent that a miscarriage of justice occurred. I am satisfied here that the evidence before the Judge was sufficient for him to determine, beyond reasonable doubt, that the appellant received the stolen goods from someone else.
[37] Therefore, the appellant has not demonstrated that a miscarriage of justice occurred here. The Judge did not make an error that resulted in an unfair trial.
16 That approach as established in Gilson v R (1991) 172 CLR 353, (1991) 65 ALJR 416 (HCA).
17 R v Cruden [2007] NZCA 537.
Result
[38] For all the reasons outlined above, this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Andrew Bailey, Christchurch
Raymond Donnelly & Co, Christchurch
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