P v Police HC Christchurch Cri-2007-409-72

[2007] NZHC 530

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000072

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 May 2007

Counsel:         C B Persson for Appellant

R M Thomas for Respondent

Judgment:      24 May 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This  appeal  concerns  the  metes  and  bounds  of  the  offence  of  theft.    In particular  it  raises  whether  the  largely  uncontested  evidence  in  the  case  was sufficient to establish a necessary element of theft, namely that the appellant had an intent to permanently deprive the owner of the relevant property, a cellphone.

[2]      The facts are straight-forward.  On 26 October the complainant was in a bar. He lost his cellphone.   The next morning he discovered his loss.   Using another phone, he telephoned his cellphone number.  The appellant answered.  At an early point in the conversation, after some exchanges which confirmed that the two had

been at a similar location the previous evening, the appellant asked “How much is it

P V NZ POLICE HC CHCH CRI-2007-409-000072 24 May 2007

worth to you?”  Unsurprisingly the complainant took this as a demand for a reward. He offered $10.  The appellant indicated that $10 was insufficient.  The complainant offered $30.  Again the appellant was displeased and in fact hung up the phone.

[3]      At that point the complainant decided to discuss the matter with the police and did so at the kiosk in the Square.  It was suggested that he should offer a sum acceptable to the appellant so that an arrangement for the two to meet could be made. This occurred.  A sum of $50 was indicated and accepted.

[4]      The two men then met briefly in Cathedral Square.   The appellant asked “Have you got the money yet?”  The complainant said no, that he would have to go to an ATM machine.  At that point the complainant walked off towards the machine and the appellant walked away in a different direction in the understanding that when the money had been obtained, a further phone call to arrange another meeting would occur.  Needless to say the police intervened and spoke to the appellant.

[5]      The case was heard in the District Court before Judge Couch on 23 March. In an oral judgment he said this:

[4]       In  his  submissions  and  in  asking  questions  in  cross-examination Mr Persson has been very particular to suggest that the defendant did not explicitly say in so many words to Mr Gibbs “unless you pay me this amount of money I will not ever return your phone to you.”  That is correct on the evidence that I have heard, or to put it another way, I have heard no evidence that such an explicit statement was made.  I have no difficulty whatsoever though in inferring from the telephone conversation which took place that the defendant was not going to return the cell phone to Mr Gibbs unless money was paid.  The defendant had no right to make that demand. Indeed, it could be said that it amounted to the crime of extortion but that is not what he is charged with and therefore I put that to one side.  The only significance of the nature of the conversation is that the implicit demand for money in return for the cell phone was a demand the defendant was not lawfully entitled to make.  (emphasis added)

[5]       The  charge  is  one  of  theft  and  theft  is  defined  as  dealing  with property with an intent to deprive the owner permanently of the property. That is the broad definition of theft and the operative one for the purposes of this case.

[6]       Mr Persson made careful and detailed submissions to me about the application of that definition to the facts of this case.  He submitted that the issue was whether the evidence established to the required standard that the defendant intended to deprive Mr Gibbs of the property permanently.  In that context he made the submission I have referred to earlier that there was no

evidence that the defendant had made any express threat not to give the phone back.

[7]       In his brief submission the Sergeant referred me to the decision of the Court of Appeal in R v Hare (1910) 29 NZLR 641 (CA). That is a decision of some antiquity but it is still referred to by the authors of the leading text as the leading case on the very point that I need to deal with here. It seems to me that the decision of the Court of Appeal in that case was summarised in the judgment of Williams J who said:

“If a person takes property belonging to another and refuses to give it up unless the owner complies with a condition which manifestly the person imposing it has no right to impose, in my opinion the person taking it steals it.”

[8]       That was in the context of a discussion about the need to prove the intent to permanently deprive the owner of the property.  I adopt and apply that approach.   Relying on the inference I have drawn from the telephone conversation which took place between Mr Gibbs and the defendant somewhere between 7 and 8 o’clock on the morning of 27 October 2006, I find  that  the  defendant  did  indeed  refuse  to  give  up  the  phone  unless Mr Gibbs paid him money, that being a condition which the defendant had no right to impose.

[6]      The sentence I have highlighted in paragraph [4] of the decision is at the heart of the argument advanced by Mr Persson on appeal.  Counsel emphasised that at no stage did the appellant expressly say that he would retain the cellphone if a reward deemed appropriate by him was not forthcoming.  The argument continued that absent an express threat of that nature, which conveyed an intention to permanently deprive the owner of the cellphone, it was unsafe for the Judge to infer that permanent deprivation was indeed the intention of the appellant.

[7]      In the course of argument I have explored this complaint with Mr Persson.  I asked him what inference could be taken from the terms of the conversation, other than the one drawn by the Judge, namely that the entire conversation was conducted in light of an implied threat that either an appropriate sum was paid or the phone would be retained by the appellant.  Mr Persson responded to the effect that this was an  available  inference,  but  not  the  only  inference  and  not  an  inference  which excluded all others, and established the necessary intent beyond reasonable doubt.

[8]      Counsel referred to what was termed the “negotiating style” adopted by the appellant.  At another point it was suggested that he may well have accepted a lesser sum, or no sum at all, had he been put to the test by the complainant.  That is, had

the complainant said that he did not have the means to pay money or only a very small amount.

[9]      I am afraid that I do not accept these contentions.  I am in entire agreement with the decision of Judge Couch.  When the Judge said that he had “no difficulty whatsoever” in inferring that the appellant intended to retain the cellphone unless his demands were met, that inference, in my view, was the only possible inference available in the circumstances.  Put shortly, the threat was so obvious that it did not need to be articulated.   Everything which occurred in the course of the telephone call,  and  subsequently,  confirmed  the  nature  of  the  threat.    If  a  sum  deemed sufficient by the appellant was not paid then the cellphone would be retained permanently by him.

[10]     For completeness, I note that this is an unusual instance of theft founded on the principle confirmed in Hare, the decision referred to by the Judge.  That principle has been applied in New Zealand since 1910, therefore, almost 100 years.  It is the subject of favourable analysis in Adams on Criminal Law.  I see no reason to depart from it, and indeed Mr Persson did not suggest that Hare should not be followed.  In any event I view it as binding on this Court, the more so because it is a case which has withstood the test of time.

[11]     For  these  reasons  I am  in  no  doubt  that  the  charge was  proved  beyond reasonable doubt, in that intent to permanently deprive was established by inference, that inference being one which was irresistible in all the circumstances.

[12]     Accordingly the appeal is dismissed.

Solicitors:

Christopher Persson Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent