P v Police HC Hamilton CRI 2006-419-86

[2006] NZHC 1157

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-0086

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 October 2006

Counsel:         L Caley for Appellant

T V Clark for Respondent

Judgment:      2 October 2006

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

L Caley, Hamilton

P V NEW ZEALAND POLICE HC HAM CRI 2006-419-0086  2 October 2006

[1]      In November 2005, Ms P   was employed at the BP 2 Go service station at Taumarunui.  She was charged as a result of incidents that occurred on 1 and 5

November 2005.

[2]      On 1 November 2005, she was alleged to have committed theft in respect of a packet of cigarettes from the service station shop.  On 5 November 2005, she was alleged to have committed theft in respect of one packet of cigarettes, one bottle of water, one pie, one fruit juice and one chocolate bar.

[3]      The charges were brought under s 220 of the Crimes Act 1961, which deals with theft by a person in a special relationship, who, among other things, is required to account for proceeds from the property or to deal with property in accordance with the requirements of another person.

[4]      After a defended hearing in the District Court at Taumarunui on 14 June

2006, Ms P   was convicted on both charges of theft.   She appeals against conviction.

[5]      The appeal is limited to whether it was appropriate for the District Court Judge to draw an inference that she had taken the property on each of the two occasions contrary to her obligations to her employer.  The problem arose from the absence of video surveillance evidence.

[6]      Prior to the District Court hearing, Mr Caley, on behalf of Ms P  , had requested disclosure of, among other things, video surveillance tapes.   One of the cameras showed an area where Ms P   was working at the relevant time.   It appears, however, that the owner of the service station, Mr Kelland, despite having watched at least some of the video tapes, formed the view that there was nothing of relevance.   Police investigations did not follow up the existence of relevant tapes until late in the piece.  By that stage, the relevant tapes had been erased.

[7]      Mr Caley, on behalf of Ms P  , submits that inferences otherwise open to the Judge could not safely be drawn when evidence could have existed, in the form

of video surveillance tapes, that may have exonerated Ms P   on the charges she faced.

[8]      Ms Clarke, for the Police, submits that there was no evidence elicited at the hearing to suggest any malevolent motive on the part of Mr Kelland against Ms P   in erasing the tapes.  She submits that the Judge was well aware of the issue. Indeed, both Mr Caley and Ms Clarke have referred me to passages in the evidence where the District Court Judge questioned witnesses  about the circumstances in which the tapes came to be erased and what they were likely to show.

[9]      Ms  Clarke  submits  that  the  Judge  was  entitled  to  put  the  possibility  of relevant video surveillance tapes to one side and to determine whether the charges were proved based solely on the evidence before him.

[10]     There is no dispute that the Judge applied the relevant legal principles in reaching his decision.  Nor is there any dispute that (leaving to one side what the video surveillance tapes might have established) there was sufficient evidence for the Judge to draw an inference of guilt on the part of Ms P  .

[11]     There was evidence from a co-worker, Mr Sievers, who was on duty on both

1 November 2005 and 5 November 2005, that during the course of his shifts he saw

Ms P   take the relevant items and pass them over the scanner.

[12]     He deposed that he noticed that the cigarettes were shown on the computer as “pending sale” on 1 November 23005.   He said that he asked Ms P   if she wanted him to complete the sale for her, an offer she declined.

[13]     On 5 November 2005, Mr Sievers deposed that he saw Ms P   take the water bottle, a packet of cigarettes, a pie, one litre of Pinto juice and a chocolate bar. The items were entered on the till as a “pending” sale.  Once again, he offered to complete the sale but Ms P   declined his offer saying that she should pay the person on the next shift.  He says that when he left work the “pending” sales were still showing on the till.

[14]   Judge Garland placed considerable weight on Mr Seivers’ evidence in determining guilt.  Having referred at length to the evidence given before him, Judge Garland concluded:

[18]   In my view, having reviewed the evidence, in this case and having considered the submissions by Mr Caley, firstly there is evidence of the defendant taking the items in question and that evidence comes from the witness Sievers, in the context of the defendant physically taking the items and also the explanation that she gave of her intention to pay for the items. In my view that evidence leads to the inevitable inference that she took those items from the shop for her own use without correspondingly dealing with those items as she was required to by her employer.  There is no evidence at all to suggest that she returned any of those items to the shelves as a matter of after thought.

[19]   I am therefore satisfied beyond a reasonable doubt that the defendant did have possession and control of the items in question.  Secondly, that she did  so  in  circumstances  which  required  her  to  pay  for  the  items  in accordance  with  recognised  procedures  of  her  employer,  Mr  Kelland. Thirdly, that she failed to do that.  It is an inevitable inference on the facts proved that she took those items from the premises without paying for them except for the pie and simply deleted the sale pending status with respect to those items from the computer so as to erase any record of the items having been taken.   Fourthly, that she did so intentionally and in breach of her obligations.

[15]     The short point for my determination is whether the Judge ought to have taken  into  account  the  absence  of  the  video  surveillance  tapes  in  determining whether the charges had been proved beyond reasonable doubt.  Mr Caley submits that their absence casts sufficient doubt on the Police evidence and that the Judge erred in finding the charges proved beyond reasonable doubt.

[16]     With respect to Mr Caley’s argument, I am satisfied that the Judge was entitled to proceed on the basis of the evidence before him.

[17]     First, it is speculative as to what, if anything, the video tapes would have shown.  The relevant camera was roving in nature and may or may not have shown Ms P   at the relevant till at the relevant time.   Indeed, it is open to equal speculation that the tape could have established Ms P  ’s guilt.

[18]     Second, the Judge was alert throughout the hearing to the possibility of the tapes providing relevant evidence that might have exonerated Ms P  .  That is clear from the questions he put to a number of witnesses on that issue.  The Judge

could  have  taken  the  view,  legitimately,  that  the  absence  of  the  tapes  caused sufficient prejudice to the defendant either to stay the prosecutions or alternatively to hold that the charges were not proved beyond reasonable doubt.   The Judge took neither course.

[19]     In those circumstances, the Judge was left with the evidence before him.  He legitimately relied on the evidence of Mr Seivers, which was not dented in any material respect in cross-examination.  That evidence, taken together with the other evidence given at the hearing, was, in my view, sufficient to establish both charges beyond reasonable doubt.

[20]     For those reasons, the appeal against conviction is dismissed.

P R Heath J