Munro v Police

[2017] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-272 [2017] NZHC 2202

BETWEEN

DANIEL MUNRO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 October 2017
Counsel:	M W Ryan for Appellant M J Mortimer for Respondent
Judgment:	31 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 October 2017 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Mark Ryan (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

MUNRO v POLICE [2017] NZHC 2202 [31 October 2017]

Introduction

[1]      Mr Munro was charged that, with intent to obtain property dishonestly and without claim of right, he used a document, namely a Bunnings invoice.1    He was convicted of this offence by Judge PJ Sinclair on 2 March 2017.2    Mr Munro now appeals his conviction.  The nub of the appeal is that the Judge was wrong to find that he had used the document as charged.

Background

[2]      The  principal  witness  for  the  prosecution  was  Ms Elizabeth  Bond,  an operations  manager  with  Bunnings  Warehouse.     Her  evidence  was  that  on

8 December 2015 her attention was drawn by a co-worker to Mr Munro and another man:3

They were carrying a piece of paper folded over and they had our stock trollies and just it didn’t look right. I saw the gentlemen in the electrical department looking for something so I thought I’d go and have a bit of a look-see what was going on, so I went and asked if I could help. They were looking for an oyster light. I noticed that it was a Bunnings invoice but it was like folded over.

[3]      Ms Bond was suspicious and waited at the desk to see if Mr Munro and his companion would come to the counter to pay for the goods they were collecting. Her evidence continued:4

Then I saw them walk past when no one was at the desk. So then I went out and I approached the gentleman and said words to the effect of, “Hey mate, have you paid for those items.” They went, “Yeah, yeah”, and continued to load the car. Then I said, “Can I please have your invoices, I need to check the goods before you can leave the building.” So he just stood there and stared at me and I think I said again, “I need the invoices.” He gave them to me, instantly I said, “Oh buddy this is dated two days ago. Who have you organised this with.” And he, from memory, said, “Oh I am just here to collect it for someone else.” And I said, “Well, who knows about this.” Like, I said, “You know, we have procedures.” I said, “I am gonna need to check the diary and our computer to follow this up because this is not our normal procedure.”

1      Crimes Act 1961, s 228(b).

2      Police v Munro [2017] NZDC 4834.

3      Notes of evidence taken before Judge PJ Sinclair, 28 February 2017, at 2.

4      At 9.

[4]      Mr Munro accepted he had the invoice.  Ms Bond said Mr Munro was the only one with whom she spoke.

[5]      Ms Bond said she went away with the invoices5  (which proved to be fake) and while she was away the two men got into their car and tried to reverse out of the Bunnings facility the wrong way.  They failed.  Ms Bond called the Police.  At one point Mr Munro went to the upstairs office where Ms Bond was and asked her who she was calling, but then went back downstairs and waited until the Police arrived.

[6]      Cross-examination of Ms Bond focused on the use Mr Munro made of the invoices.  Ms Bond accepted that he made no positive statements about the invoices which could be interpreted as a claim that they entitled him to remove goods on the basis that they had already been paid for.

[7]      Mr Munro exercised his right to silence when approached by the Police. However, he gave evidence at trial.  He said he was given a list to go to Bunnings with and to pick up some items and pay for them.   He said he gave the list to Ms Bond  when  she  asked  him  for  it.    He  did  not  know  why  she  wanted  it. Essentially, he was arrested before he had the opportunity to pay for the goods.

District Court

[8]      Judge Sinclair rejected Mr Munro’s evidence.  There is no challenge to her ability to  do  so.    The  challenge  is  to  whether  the  Crown’s  evidence  proved  a dishonest use.

[9]      Having returned to the Crown case, Judge Sinclair accepted the evidence of

Ms Bond as reliable. The Judge concluded:

[31]      Here, Mr Munro held the invoices in his hand and handed them over to Ms Bond. In my view he was using it by doing that as he was seeking to justify requesting items and loading them onto his trailer. Furthermore, he acknowledged to Ms Bond that he had paid for the items.

[32]     I am satisfied the elements of the charge have been proven to the requisite standard. I am satisfied Mr Munro used the document. He did so dishonestly, given the invoices were not Bunnings invoices and the items

5      It appears there were two, but the charge refers to one. Nothing turns on that.

listed had not been paid for. He had no claim of right and he did it to obtain a pecuniary advantage, namely the timber and tools. So, the charge is proven beyond reasonable doubt.

Appeal

[10]     Mr Ryan submits that the invoices were not capable of being used to obtain a pecuniary advantage because, on their face, they showed a purchase had been made two days prior, a discount applied to the purchase and change had been given to the purchaser.  Further, it was accepted by Ms Bond that Mr Munro did not at any stage directly rely upon the invoices as authorising the uplifting of items without payment. His actions at Bunnings do not negative the reasonable possibility that he was going to pay for the items that he had collected.

Analysis

[11]     In  my  view,  it  was  open  to  Judge  Sinclair  on  the  evidence  to  convict

Mr Munro:

(a)       He was openly carrying the invoices while in the Bunnings premises. (b)      He  was  consulting  the  invoices  (by  his  own  evidence  it  was  a

shopping list) and loading items onto a stock trolley.

(c)      He responded to Ms Bond’s query as to whether the items had been paid for by saying, “yeah, yeah”.  The only basis for that answer was if he was relying on the invoices.

(d)When Ms Bond asked Mr Munro for the invoices she made it clear that she was doing so to check whether Mr Munro was able to remove the goods from the premises without paying for them.   Mr Munro handed over the invoices for that purpose.

(e)      Initially, after he had given the invoices to Ms Bond, he tried to leave the premises by reversing the car and trailer out through the entrance. This did not work and he returned to query Ms Bond as to who she was telephoning.

(f)       The invoices were fake.

[12]     In my view, Judge Sinclair was entitled to regard the open display of the invoices, consulting them as a “shopping list” and, crucially, handing them over knowing the purpose for which Ms Bond wanted them, as sufficient to constitute using the documents.  The necessary criminal intent can be inferred from his “yeah, yeah” answer, the attempt to leave the premises and the fact that the invoices were false.

[13]     The appeal is dismissed.

Brewer J