N v Police Cri-2010-441-7 HC Napier

[2010] NZHC 463

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-441-000007

N

Appellant

v

POLICE

Respondent

Hearing:         12 April 2010

Appearances: B Webby for Appellant

F E Cleary for Respondent

Judgment:      12 April 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction.

[2]      The appellant was convicted in the District Court on one charge of receiving, following a defended hearing.

Factual background

[3]      The information against the appellant alleged that he had received two gas heater bottles, brass ashtray, gas heater and barbeque, knowing them to have been stolen.  At the hearing the prosecution called evidence from the complainant, as well

as from two police officers.  The complainant testified that he had been living in a

N V POLICE HC NAP CRI-2010-441-000007  12 April 2010

sleepout and that during his absence the sleepout was burgled and a number of items stolen, including two gas heater bottles, brass ashtray, gas heater and barbeque.  He further testified that some time after the break-in he received an ultimatum from the appellant, saying he could have his property back if he paid a sum of money that was in dispute.

[4]      The complainant testified that following receipt of this ultimatum he went to the appellant’s address and looked through a window, where he saw his television, microwave and barbeque.  The complainant subsequently made a complaint to the police, and a search warrant was executed at the appellant’s address.  Evidence was given that there the police located and uplifted two gas bottles, a gas heater, a hooded gas barbeque and a brass ashtray.  The items uplifted were photographed and the photos produced as an exhibit at the hearing.

[5]      Counsel for the appellant, Mr Webby, advises that at the conclusion of the prosecution case he made a submission there was no case to answer on the grounds that the prosecuting sergeant had failed to put the photographs to the complainant to identify what was shown in the photographs as being the property that had been taken  in  the  burglary.     Therefore,  it  was  submitted,  there  was  no  positive identification of the property that was at issue.

[6]      Unfortunately, the hearing transcript does not record either the making of the submission, nor the reasons for the Judge’s rejection of it.  Mr Webby says the Judge ruled there was a case to answer on the grounds that in evidence-in-chief the complainant had mentioned items of property of the type seized.

[7]      Following the Judge’s ruling there was  a case to answer, the appellant gave evidence himself.   The thrust of his evidence was that the gas heater found in his property belonged to a relative, that one of the gas bottles belonged to him, and that all the other items of property had either been left by the complainant  prior to the date of the burglary or given by the complainant to him, again prior to the date of the burglary.

[8]      In finding the appellant guilty of receiving, the District Court Judge said he preferred the evidence of the complainant.  The Judge stated that he did not accept the appellant’s explanation, nor did that explanation cause him to have any doubt about the dishonest inferences that were to be drawn from the prima facie circumstances.

[9]      The Judge found the appellant was in possession of stolen property and knew that it had been taken from the complainant in the burglary.

[10]     On appeal, the appellant submits that in the absence of any evidence from the complainant positively identifying the property in the photograph as the same property that was taken in the burglary, there must be a reasonable doubt as to guilt.

[11]     I accept that the complainant was not shown photographs during the course of his evidence-in-chief.  However, he was cross-examined about each of the items depicted in the photograph and confirmed that they were the ones about which he was complaining.  Further, there was uncontested evidence from a police officer that in her presence the complainant had identified the property uplifted from the appellant’s address as the property that was missing from his sleepout.   Thirdly, there is the further point that when the appellant gave evidence he acknowledged that at least some of the items in dispute belonged to the complainant, or at one time had belonged to the complainant.

[12]     In all those circumstances, in my view there was not a reasonable doubt as to the identity of the property that was uplifted from the appellant’s address.  I see no grounds for appellate intervention.

[13]     The appeal is accordingly dismissed and the conviction confirmed.

Solicitors:

B Webby, Hastings

Crown Solicitor’s Office, Napier