Nathan v Police

[2019] NZHC 2683

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-29

[2019] NZHC 2683

BETWEEN

TAMMY NATHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 October 2019
Counsel:	W R Hawkins for Appellant L M Marshall for Respondent
Judgment:	21 October 2019

JUDGMENT OF THOMAS J

[1]        Ms Nathan appeals against her conviction for receiving stolen property worth less than $500, namely a Nissan Navara, being reckless as to whether the vehicle had been stolen.1 The sole ground of appeal in the notice of appeal concerns whether the trial Judge should have dismissed the charge rather than amending the value of the stolen property in the charge. The issue moved somewhat at the appeal hearing to be whether there was sufficient evidence for a finding of guilty on the amended charge.

[2]        Ms Nathan had pleaded not guilty and was tried by judge-alone on 30 July 2019. Ms Nathan did not give evidence. The prosecution called three witnesses, all police officers who executed a search warrant (on an unrelated matter) at a rural address in Te Hauke on 2 January 2019. Their evidence was that they found the Nissan Navara parked next to the dwelling on the property. They then conducted a check in the police database, which identified the vehicle as stolen since November 2018. The

1      Police v Nathan [2019] NZDC 17136.

NATHAN v NEW ZEALAND POLICE [2019] NZHC 2683 [21 October 2019]

police officers approached the sole occupant of the property, Ms Nathan, who said “one of the bros brought it around” and she had “hot-wired” it and used it to drive around in. Ms Nathan also referred to the person who had brought the vehicle around as a “prospect”. The police officers’ evidence was they assumed she was referring to a gang connection.

[3]        Mr Hawkins, who was also defence counsel at trial, cross-examined the three police officers, but their evidence was largely left unchallenged. The central issue was whether the prosecution had proven all elements of the charge beyond reasonable doubt. Ms Nathan was originally charged with receiving stolen property worth more than $1,000 knowing it was stolen. The charging document alleged the vehicle was worth $3,000. At the conclusion of the prosecution case, Mr Hawkins made an oral application to dismiss the charge under s 147 of the Criminal Procedure Act 2011 on the basis no evidence had been offered as to the value of vehicle.

[4]        A discussion ensued between the Judge and counsel as to whether the value of the stolen property is an element of the charge requiring proof beyond reasonable doubt or merely a matter going to penalty. The police prosecutor informed the Judge from the bar that the vehicle was understood to be worth approximately $1,100. The Judge substituted the charge, reducing the amount to “under $500”, and replacing the word “knowing” with “reckless”.

[5]        The Judge found Ms Nathan had received the vehicle by assuming control of it. She did so by hot-wiring it and using it to drive around in. There was also evidence suggesting Ms Nathan had been reckless as to whether the vehicle had been stolen. The vehicle had damage consistent with a stolen vehicle. The ignition was damaged and there an improvised ignition system. Ms Nathan was clearly aware of this because she had to hot-wire the vehicle rather than using the ignition. The Judge was satisfied beyond reasonable doubt Ms Nathan had appreciated the risk the vehicle might have been stolen and nevertheless elected to assume control of the vehicle for her own use, and so convicted her of the amended charge.

[6]        The Judge ordered Ms Nathan to come up for sentence if called upon in the next 12 months. Ms Nathan does not challenge the sentence arrived at by the Judge, in the event her conviction appeal is unsuccessful.

[7]        Ms Nathan does not contest any of the conclusions reached by the Judge that she received stolen property. The sole ground of appeal is that the Judge ought to have dismissed the charge rather than amending it because of the concerns about the value of the vehicle. Mr Hawkins submitted that while the Judge had jurisdiction to amend the charge, he ought to have dismissed it because the prosecution had completed its case and it was not open to the Judge to admit further evidence on the value of the vehicle.

[8]        The Crown opposes the appeal on the basis the Judge correctly amended the charge. Ms Marshall submitted it was unnecessary to produce any further evidence because it was apparent from the evidence already led that the vehicle had at least some value, as Ms Nathan had used it to drive around in. In those circumstances, the prosecution had already proven beyond reasonable doubt the vehicle had a value of less than $500.

[9]        As a preliminary note, it is beyond question the value of the stolen property is an element of the charge requiring proof beyond reasonable doubt, at least insofar as the value must be within the ranges specified in s 247 of the Crimes Act 1961. That section specifies the penalties for receiving stolen property, which vary depending on the value of the stolen property. Several Court of Appeal authorities confirm this point.2

[10]      That said, the Judge had jurisdiction to amend the charge under s 133 of the Criminal Procedure Act 2011. This was also the approach suggested by the Court of Appeal in R v Heather.3

[11]      The case can be distinguished from that of Cullen v R where the indictment before the jury made no reference to the value of the allegedly received stolen vehicles

2      R v Koura [1996] 2 NZLR 9 (CA); R v Heather CA198/01; and Cullen v R [2012] NZCA 413 at [17].

3      R v Heather, above n 2, at [4].

and the District Court Judge declined to allow the Crown to file an amended indictment specifying the value of those vehicles. In the present case, the charge was laid under ss 246 and 247 and the alleged value of the vehicle was specified.

[12]      Mr Hawkins submitted that the only evidence of value was that Ms Nathan had driven the vehicle and that was not sufficient to prove value beyond reasonable doubt. The Judge was entitled to infer from evidence about which he was satisfied that the vehicle was of some value. And from that evidence he was entitled to be satisfied of the value beyond reasonable doubt. Furthermore, it goes without saying the vehicle was worth at least something, even as scrap metal. That is a matter of which the Judge could take judicial notice. The amended charge with the requirement that the value of the car “not exceed $500”4 was clearly made out on the evidence.

[13]      The situation is analogous to the circumstances of R v Koura where, in a case involving theft of electricity, the Court of Appeal accepted that the value as alleged in the charge was not proved beyond reasonable doubt but concluded the jury was satisfied and entitled to be satisfied that the appellant had stolen electricity but of a value undetermined. The Court decided that justice would be served by amending the indictment by deleting the alleged value and substituting a value not exceeding $100. The position in the present case is the same. The value of over $1,000 as originally charged was not proved beyond reasonable doubt but there was sufficient evidence to enable the Judge to be satisfied beyond reasonable doubt that the vehicle had a value not exceeding $500.

[14]      Nor was there any prejudice to Ms Nathan in amending the charge. There is no suggestion the defence case would have been any different had Ms Nathan originally been charged with receiving stolen property under $500. In any event, it appears the Judge amended the charge prior to the commencement of the defence case, so it was still open to Ms Nathan at that stage to give evidence if she wished to. It is not clear whether Ms Nathan was given the opportunity to replead to the charge as amended. She could, of course, have elected to do so. In any event, it cannot be said that there was any prejudice in this regard either, for example because she did not

4      Crimes Act 1961, s 247(c).

receive a full benefit for a guilty plea. The sentence imposed, to come up for sentence if called upon, demonstrates the point.

[15]Ms Nathan has failed to demonstrate a miscarriage of justice.5

[16]The appeal is dismissed.

Thomas J

Solicitors:

Bramwell Bate, Hastings for Appellant

Crown Solicitor’s Office, Napier for Respondent

5      Criminal Procedure Act 2011, s 232.