McClutchie v Police HC Auckland CRI-2011-404-000159
[2011] NZHC 775
•13 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000159
BETWEEN JENNIFER MCCLUTCHIE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 13 July 2011
Appearances: S Magnussen for Appellant
Z Johnston for Crown
Judgment: 13 July 2011
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, PO Box 2213 Shortland Street Auckland 1140
Copy to: S Magnussen, Auckland
MCCLUTCHIE V NEW ZEALAND POLICE HC AK CRI-2011-404-000159 13 July 2011
[1] The appellant appeals against conviction for receiving entered following a defended hearing before Judge Wade in the District Court at Auckland.
[2] On 28 May 2010 the original owner of the dress, Ms Anderson, was as the Judge put it, the victim of a burglary. In the course of the burglary a dress, which was a distinctive one, was stolen. Eight days later, on 4 June 2010, Ms Anderson saw the appellant wearing the dress. The matter was reported to the police. The appellant was interviewed by a police officer, Officer Sokur. The officer said that he spoke to the appellant, and gave her her rights. She was intoxicated and unco- operative and became quite aggressive when asked about the dress. He said:
She initially told me she bought the dress a week ago from a shop and then she changed her story by saying she bought it a couple of months ago from the second-hand shop.
[3] It is not in issue that the dress worn by the appellant on 4 June 2010 was the
dress stolen from Mr Anderson’s home in the course of the burglary.
[4] The appeal is advanced on two principal grounds. Firstly whether the appellant had requisite knowledge the dress was stolen or was reckless as to its origin when she received it; and second, in the alternative, whether the Court could be satisfied beyond reasonable doubt that there was evidence of the act of receiving when the appellant could equally have been the burglar.
[5] In convicting the appellant the Judge said on the first issue:[1]
[1] NZ Police v McClutchie DC Auckland CRI-2011-004-004640, 4 May 2011 at [5]-[6].
[5] Although there is no direct evidence, that is not surprising because, of course, it relates to the defendant’s state of mind. What I have before me, however, is the evidence of Constable [Succour], completely unchallenged by this defendant, that he asked her at the time of her apprehension where the dress had come from, quite naturally, and he received from the defendant two totally different and contradictory statements. One was that she had bought the dress at a shop a while ago, but then she changed the story, and then said she had had it for a couple of months, having purchased it at a second hand shop. That second assertion cannot possibly be true, because, in fact, the dress had only been stolen some eights days beforehand.
[6] So I have what, on the face of it, is unchallenged evidence that the defendant was giving a deliberately untruthful statement to the police, and is such as to enable me to draw an inference if I think it appropriate to do so.
But the only rational explanation for that untruthful statement is because [the appellant] either knew perfectly well that the dress was stolen or, indeed, strongly suspected that to be the case, which was her motive for lying. So I am satisfied about the mental element.
[6] Ms Magnussen challenges that finding and submits that in fact it was put to the officer that the appellant, because of her intoxicated state, was unable to give an accurate statement but more significantly, the Judge failed to consider that because of her intoxicated state the appellant might have provided less than a sensible response to the officer. She was intoxicated and under pressure and that might have explained why she had lied to the officer.
[7] Ms Magnussen submitted that the Judge should have weighed that as a possible reason for her lying. She referred to the lies direction that Judges give juries in similar circumstances. She submitted that overall the inconsistency in the two explanations given by the appellant could not of itself have provided sufficient evidence to prove beyond reasonable doubt the appellant knew the dress was stolen or was reckless as to its origin.
[8] As noted it is accepted that the appellant gave conflicting explanations to the officer. One of them at least was clearly established to be untruthful and a lie. As the Judge observed in terms of establishing the mens rea of the offence, the Court was required to draw an inference as to the appellant’s state of mind, in particular to make a finding that the appellant had received the property, the dress, knowing the dress to have been stolen or otherwise reckless as to whether it had been stolen.
[9] The only evidence on that was the appellant’s statement. As noted she did lie in the course of making the statement when giving an explanation as to how she had come into possession of the dress. She was either lying because she had a guilty mind, which would support the inference the Judge drew, or because she was unable to make an accurate statement because she was intoxicated or otherwise under pressure.
[10] I accept Ms Johnston’s submission for the Crown that the Judge was entitled to take into account the change in the appellant’s statement and the fact the appellant had lied and further, that while it may have been better if the Judge had expressly
directed himself along the lines of a lie direction or warning, it is apparent, despite the submissions by Ms Magnussen that the Judge did consider there may have been alternative reasons for the appellant to have lied. I draw that inference from the Judge’s statement that “But the only rational explanation for that untruthful statement is because [the appellant] either knew perfectly well that the dress was stolen or, indeed, strongly suspected that to be the case, which was her motive for lying.” As he has concluded that was the only rational explanation for the untruthful statement. I take that the Judge was aware there were other explanations such as the fact she was intoxicated or under pressure.
[11] The first ground of appeal must fail.
[12] That leaves the second ground which relies on the judgments of the Court of Appeal in R v Sizemore[2] and R v Cruden[3]. In Sizemore, after referring to the Privy Council case of Attorney-General of Hong Kong v Yip Kai-foon[4] the Court of Appeal held that there was a requirement to acquit on both charges unless one or the other could be proved beyond reasonable doubt.
[2] R v Sizemore CA290/05, 5 December 2005.
[3] R v Cruden [2007] NZCA 537.
[4] Attorney-General of Hong Kong v Yip Kai-foon [1988] AC 642.
[13] In Cruden, a case that has some similarities with the present and which the appellant relies on, the Court considered a charge of burglary with respect to the theft of US currency from a hotel room where a charge of receiving might have been an equal possibility. In Cruden tourists had left a considerable sum of cash in US dollars in their hotel room. They were gone from early evening until about 11.30 p.m. Within that timeframe, at about 10.00 p.m. Mr Cruden was seen at a casino attempting to exchange a sum of US dollars, which almost exactly matched the stolen money. He was convicted of burglary of the stolen money. He offered no explanation when interviewed.
[14] The Court of Appeal noted there was no alternative charge of receiving in the indictment and concluded it was not possible to be sure to the requisite standard the
appellant was the burglar as opposed to a receiver.
[15] Accordingly, the Court held the Judge had erred in not directing the jury that they had to be satisfied to the requisite standard that Mr Cruden was the burglar and not a receiver.
[16] Ms Magnussen submitted that was the position in the present case, given the relatively short timeframe between the burglary when the dress was taken and when the appellant was found wearing it. She submitted that this was effectively a true alternative which was open to the Judge and submitted that his finding at [7] of the case was not open to him.
[17] The Judge dealt with the matter in the following way:
[7] There is, however, one remaining legal submission, that is, that the prosecution cannot prove positively that [the appellant] was not, indeed, the burglar. That is quite right, but I am satisfied on various authorities that although it is a complete answer to a charge of receiving to say, “I am not the receiver because I am the person who actually stole the item,” and receiving involves a third party, the law is, I think, quite clear, that it is for the defendant to put forward that explanation in evidence. Obviously, as I pointed out already, if she were to give evidence, she is not guilty of receiving because she, in fact, stole the dress herself. I would be at that stage obliged to acquit her, but the result, inevitably, I suspect, would be that she would immediately be charged with the offence of burglary, and no doubt convicted of it as a result of her own confession sworn to in evidence.
[18] If the Judge is to be taken from that passage to be saying that there was some obligation on the appellant to give evidence in the circumstances of their case that must be wrong. However, as Ms Johnston submitted, it is unnecessary for the Judge’s reasoning to be applied in this case because the High Court decision of Ngarimu v Police[5] provides a basis to support the conviction in the present case in any event.
[5] Ngarimu v Police HC Christchurch CRI-2008-409-000210, 12 February 2009 Panckhurst J.
[19] In Ngarimu the appellant was found guilty in the District Court of receiving a mountain bike. The appeal was mounted on the single ground that on the authority of Cruden the Judge in the District Court could not have been satisfied beyond reasonable doubt that the appellant received the bike as opposed to stealing it and he
should have been acquitted.
[20] In that case the bike had been stolen approximately a month before the appellant was found with the bike when attempting to sell the bike at Cash Converters.
[21] Also, when tasked by a police officer about how he had come to be in the possession of the bike, Mr Ngarimu gave conflicting stories. Initially he said he had bought the bike approximately a week ago and then, after further questioning, his explanation changed to the extent he said that he had been in possession of the bike for about a month. He was unable to explain how he was to account for the balance that he said he owed the person or persons he bought the bike off.
[22] In the circumstances Panckhurst J distinguished the case of Cruden and upheld the conviction.
[23] Ms Magnussen sought to distinguish the case of Ngarimu from the present because in the present case there was a much shorter period of time that elapsed between the burglary and the appellant being found in possession of the dress. She suggested it was more a case of recent possession and the appellant’s explanation in this case was, for the reasons given earlier, unreliable, by reason of intoxication and the pressure that she was under.
[24] She also referred to the general principle referred to by the Court of Appeal in
Sizemore.
[25] In my judgment the case of Ngarimu cannot be distinguished on the basis that counsel advances, whereas the Court of Appeal decision of Cruden can be.
[26] In Cruden it was a matter of hours between the theft and the appellant being found in possession of the money. In the present case eight days had passed, quite sufficient time for the appellant to have received the dress from the burglar.
[27] More importantly, however, in the present case, as in Ngarimu, but as opposed to Cruden, the appellant did provide an explanation for how she came to be in possession of the dress. In both of her explanations she said she had bought the
dress. The explanation that she had bought the dress is consistent with receiving the dress rather than obtaining it by direct theft or burglary.
[28] For those reasons it seems to me that this case is similar to that of Ngarimu and similar reasoning must apply. Like Panckhurst J in that case I find myself able to distinguish the present case from Cruden.
[29] Counsel’s reliance on the case of Sizemore really adds nothing on the facts of this case. As a matter of principle, Sizemore establishes and confirms that it is for the prosecution to prove beyond reasonable doubt which of two offences has been committed. But in the present case, while the onus of course remains on the prosecution to prove that the charge of receiving had been committed beyond reasonable doubt, there was sufficient evidence to support the Judge’s finding that the appellant had indeed been guilty of receiving as opposed to burglary and to be satisfied as to that beyond reasonable doubt.
[30] For those reasons the second ground of appeal must also fail. The appeal is dismissed.
Venning J
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