Marsden v Police HC Christchurch CRI-2011-409-000005

[2011] NZHC 637

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000005

BETWEEN  NATHAN JOHN MARSDEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         1 June 2011

Appearances: R A Peters for Appellant

K Basire for Crown

Judgment:      9 June 2011 at 4:00 PM

JUDGMENT OF VENNING J

This judgment was delivered by me on 9 June 2011 at 4 p.m. pursuant to Rule 11.5 of the High Court

Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Christchurch

Thompson & Morgan, 325 Manchester Street, Christchurch

MARSDEN V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000005 9 June 2011

Introduction

[1]      Following a defended hearing before Judge Saunders in the District Court at Christchurch the appellant was convicted on seven counts of burglary.  He was found not guilty in relation to two other counts of burglary.  On 7 September 2010 Judge Saunders sentenced him to imprisonment for four years on the burglary convictions. On the same day he was sentenced to an effective cumulative term of 12 months on two counts of assault on his former partner.

[2]      The  appellant  appeals  against  conviction  and  sentence  in  relation  to  the burglary matters.

Preliminary matters

[3]      The appeal is out of time. Ms Basire confirmed the police did not oppose leave being granted.  In the circumstances leave was granted to bring the appeal out of time.

[4]      At the outset of the hearing Mr Peters confirmed that, while he could not formally abandon the appeal against sentence, he accepted if all convictions stood then in light of the authorities and the appellant’s record the sentence of four years would be difficult to challenge. The main focus was on the convictions for burglary.

Background

[5]      Between  14  April  2009  and  16  May  2009  there  were  nine  burglaries committed in the Canterbury region.   The appellant was charged with committing those burglaries.

[6]      It was not in issue that the burglaries had occurred nor that some of the property pawned by the appellant and a Mr Roskam originated from the burgled premises. The issue was whether the appellant had committed the burglaries.

[7]      The case against the appellant was largely based on the evidence of Mr Roskam who gave evidence as a prosecution witness implicating the appellant in the burglaries.  In addition there was evidence of telephone calls the appellant had made from prison.  The calls were recorded and transcripts provided.  The police case was that in the course of those calls the appellant admitted his involvement in the burglaries.

[8]      In his statement to the police the appellant also admitted giving a ring to Mr

Roskam to pawn. The ring had been taken in the first burglary.

The District Court decision

[9]      The Judge considered that Mr Roskam’s evidence about the detail of the burglaries and his involvement with items taken from a number of the burglaries confirmed Mr Roskam’s knowledge of the burglaries either through his involvement in them, or through the appellant telling him about them.  The Judge found the first four burglaries proved (Roskam could not have committed them as he was in jail) and also found three of the remaining burglaries proved – Roskam was involved in pawning items taken from them.

[10]     The Judge gave the appellant the benefit of doubt in relation to the two other charges where Mr Roskam was not involved in selling the items.

The grounds of appeal

[11]     Mr Peters submitted the Judge was wrong to have accepted the evidence of Mr Roskam.  He noted that at least up until 6 May Mr Roskam was serving time in prison himself.  He could not have been involved or have personal knowledge of the first four burglaries as they related to properties burgled between 14 and 17 April

2009.  While the Judge was right to note that Mr Roskam was in custody until 6 May just because Mr Roskam could not have committed burglaries it did not mean the appellant had committed them.

[12]     Further,  Mr  Roskam  had  been  held  in  a  previous  case  to  have  been  an unreliable and untruthful witness:  Morgan v R.[1]

[1] Morgan v R [2010] NZSC 23.

[13]     Next, Mr Peters submitted that the Judge fell into error by considering that the fact Mr Roskam was able to speak with some knowledge about the incidents meant the appellant was involved in the incidents.   He made the point that Mr Roskam could have committed the burglaries himself without the appellant being involved.

[14]     Mr Peters also made the point that while the ring from the first burglary had been given by the appellant to Mr Roskam it had been given some time after the burglary and could not satisfy the test of recent possession.

[15]     As for the telephone transcripts he submitted that prisoners, including the appellant, were aware their calls were recorded and the comments  the appellant made were very general.

Decision

[16]     The  transcript  discloses  Mr  Roskam  was  a  reluctant  witness  for  the prosecution.  But ultimately he said that the accused had told him how he had done the burglaries by smashing windows with rocks or things like that to gain entry.  He also accepted that he received a number of items from the appellant to pawn.  Other evidence confirmed that those items had been taken from the burglaries.   He also accepted he had made a statement in which he said the appellant had told him that the gear was from burglaries the appellant had done out of town because he didn’t want to do them in town.  He said the appellant told him that he took a laptop from a burglary at Prebbleton.   Mr Roskam had also given the police further details the appellant had told him about, for instance that during the course of the burglaries he would wear blue gloves.

[17]     Mr Roskam’s evidence was generally consistent with other evidence as to the

circumstances of the burglaries.  The seven burglaries the Judge found proved were

outside Christchurch city itself.  The method of entry in five of them was either by a rock being thrown through the window or by the window being broken.  The first one involved louvres being removed from the windows.

[18]     Although Mr Roskam’s DNA was found on a cigarette left at one of the burgled premises Mr Roskam said that he rolled cigarettes for other people including the appellant.

[19]     Mr  Roskam  was  potentially  an  unreliable  witness.   Apart  from  his  past history, which the Court was aware of, there was reason for him to lie or give false evidence implicating the appellant in an effort to reduce his level of involvement in the offending.   However, the Judge directed himself as to the need to be cautious when considering Mr Roskam’s evidence.  He properly directed himself in terms of s 122 Evidence Act 2006.

[20]     If Mr Roskam’s evidence had stood on its own the Judge may well have been left with a reasonable doubt.   However, Mr Roskam’s evidence of the appellant’s involvement in the burglaries was supported in a number of ways.   As the Judge observed, what Mr Roskam told the police about how the burglaries were committed and the fact they were in houses out of central Christchurch is consistent with Mr Roskam either being involved in the burglaries (and having personal knowledge of them) or at least being told by the appellant about the burglaries.

[21]     Next, the four burglaries committed on 17 April were linked by time, location and method of entry as the Judge observed.  The appellant gave a ring taken from one of those to Mr Roskam to pawn. The appellant accepted he gave Mr Roskam the ring and was unable to provide a credible explanation as to where he got the ring from  The first four burglaries were very similar to the later burglaries committed between 8 May and 16 May 2009.

[22]     Perhaps  the  most  telling  evidence  against  the  appellant  was  his  own statements in the course of his telephone calls from the prison.   In the first conversation to a Mr Evans, the appellant said, after referring to the police having turned up at prison:

And they’re here to try and get me for all of those things.

...

Yeah, all of them, like as in fucken 17 of them.

...

And then later in the same call:

Yeah and and and and then he goes oh you wouldn’t want me dragging um Kyla into this and I was like ooh fucken dirty pig and then um they’ve got all the information because um ah the dude I did it with has fucken snitched on me man.

Although Mr Peters suggested the appellant might have been referring to receiving stolen property, that the appellant was referring to the burglaries is put beyond doubt by his later comment in the same conversation when he said:

Yeah, they’re trying to get me on 17 um 17 burglaries.

[23]     Mr Peters was driven to submit that, as a question of fairness, if Mr Roskam had committed the burglaries as well he should have been charged with that as opposed to receiving.  But it is for the police to determine what charges to lay.  The fact Mr Roskam may not have been charged with as serious an offence as he could have been is a factor which may have impacted on his motivation for giving false evidence but that was a matter the Judge was aware of and properly directed himself on.

[24]     On the evidence before him the Judge was entitled to find the four burglaries that occurred between 14 April and 17 April were committed by the appellant.  Mr Roskam could not have been the offender but his knowledge of those offences came from what the appellant had told him.  There was also the ring that the appellant had given Mr Roskam from one of the burglaries and the fact all took place over the same day.

[25]     Of the remaining five offences the Judge convicted the appellant on the three where Mr Roskam had pawned items (and the appellant had on one occasion).  The detail in Mr Roskam’s statement about the appellant’s modus operandi could only have come from someone who had been there or had been told about it by the

offender.   In relation to the other two where there was no connection between Mr

Roskam and the burglaries the Judge acquitted the appellant.

[26]     On  the  information  before  the  Court  the  Judge  was  entitled  to  find  the charges proved. He directed himself properly in terms of the Evidence Act.

Result

[27]     The appeal against conviction is dismissed.

[28]     Although counsel did not address the issue of the appeal against sentence I

confirm the sentence was within range, given the extent of the offending and the appellant’s history. The appeal against sentence is also dismissed.

Venning J