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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2683
Decision Date: 21 October 2019

CaseChat Overview and Summary

In the case of Tammy Nathan v New Zealand Police, the appellant, Ms Nathan, appealed against her conviction for receiving stolen property, specifically a Nissan Navara, worth less than $500, while being reckless as to whether the vehicle had been stolen. Ms Nathan argued that the trial Judge should have dismissed the charge instead of amending the value of the stolen property. The appeal hinged on whether there was sufficient evidence for a finding of guilty on the amended charge. Ms Nathan had pleaded not guilty and was tried by a judge-alone. The prosecution presented evidence from three police officers who found the stolen Nissan Navara on the appellant's property. Ms Nathan admitted to hot-wiring the vehicle and using it to drive around in. The trial Judge amended the charge, reducing the amount to "under $500" and replacing the word "knowing" with "reckless."

The appeal centred on whether the trial Judge had the jurisdiction to amend the charge and whether there was sufficient evidence to support a finding of guilty on the amended charge. The Court of Appeal held that the value of the stolen property is an element of the charge requiring proof beyond reasonable doubt. However, the Judge had the jurisdiction to amend the charge under the Criminal Procedure Act 2011. The Court found that the prosecution had proven beyond reasonable doubt that the vehicle had a value not exceeding $500. The Judge was entitled to infer from evidence that the vehicle was of some value and that it was worth at least something, even as scrap metal. The Court held that there was no prejudice to Ms Nathan in amending the charge, and the appeal was dismissed.

In conclusion, the appeal was dismissed, and Ms Nathan's conviction for receiving stolen property worth less than $500 while being reckless as to whether the vehicle had been stolen was upheld. The Court found that the trial Judge had the jurisdiction to amend the charge and that there was sufficient evidence to support a finding of guilty on the amended charge.

Orders