Palmer v Police - [2016] NZHC 2633

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000083 [2016] NZHC 2633

BETWEEN
ROGER GORDON PALMER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 November 2016

Appearances:

Appellant Appears In Person
P A Norman and C E Martyn for Respondent

Judgment:

3 November 2016

JUDGMENT OF GENDALL J

Introduction

[1] On 21 July 2016 the appellant, Mr Palmer, was convicted in the District Court of theft under s 223(b) Crimes Act 1961, Section Act 1961 in relation to his retention of a “crusher bucket/ pulveriser” attachment to construction equipment. The context is that the complainant, a Mr Pearce, had earlier been sold (and had fully paid for), the item by the appellant. Later, Mr Pearce had agreed to lend the appellant the item. From that point onwards, and despite repeated requests and demands for its return, the appellant refused to return the item. Over the course of time the appellant made various representations that he would return the item, but ultimately refused to do so, on the basis that he and the victim “had things to sort out”. That formed the background to the charge, which Judge Kellar in the District Court found to be proved.

[2] The appellant now appeals against his conviction.

[3] The present appeal, in my view, lacks merit. For the reasons which follow, it is to be dismissed.

PALMER v NEW ZEALAND POLICE [2016] NZHC 2633 [3 November 2016]

Procedural matters

[4] The appellant initially in the District Court applied for a rehearing, alleging a number of matters broadly falling within the bounds of “procedural unfairness”. The appellant’s current appeal was adjourned so that process could be carried out. It is understood that the rehearing application was refused, and the process has now run its course.

[5] It therefore appears that the appeal can now legitimately be heard.

[6] For the avoidance of doubt, I record here that the appeal is not out of time. The appeal was filed on 2 August 2016. The principal judgment of Judge Kellar, which discussed the evidence and found “the various elements of the charge of theft…proved beyond reasonable doubt”,1 was delivered on 23 June 2016. However, the Judge gave the appellant time to return the crusher bucket/pulveriser, and indicated a conviction with discharge would be entered if that was done. The appellant duly returned the item. On 21 July 2016, Judge Kellar gave a brief oral judgment entering the conviction, and discharging the appellant. It is that decision
which began the relevant 20 working day period under s 231(2) of the Criminal

Procedure Act 2011.

Principles on appeal

[7] Appeals against conviction are brought under s 229 of the Criminal Procedure Act 2011, and must be determined in accordance with s 232 of that Act. The present case involved a Judge-alone trial at first instance. In these cases, an appeal against conviction must be allowed only if it is found that the Judge erred in his assessment of the evidence to such an extent that a miscarriage…

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: [2016] NZHC 2633
Decision Date: 3 November 2016

CaseChat Overview and Summary

The appellant, Mr Palmer, appeals against his conviction by the District Court of theft of a crusher bucket/pulveriser attachment. Mr Palmer had earlier sold the item to Mr Pearce, and subsequently agreed to lend it to him. Despite repeated demands, Mr Palmer refused to return the item, claiming that he and Mr Pearce had "things to sort out". Mr Palmer appeals against his conviction on the grounds of procedural unfairness, and the alleged failure of the trial judge to admit certain relevant evidence and to make certain factual findings. The Court must determine whether there was a miscarriage of justice, or an unfair trial. The Court finds that the appeal is without merit. The appellant was given ample opportunity to call witnesses and present evidence, and the trial judge accepted the evidence of the appellant's two witnesses, though he preferred the evidence of Mr Pearce and the police sergeant. The appellant's claim of an unwritten agreement between himself and Mr Pearce that the appellant would retain the crusher bucket/pulveriser as satisfaction of certain debts was not proven in evidence. The trial judge's decision came down to questions of credibility and legitimate inferences he drew from the evidence. The Court must be slow to disturb the trial judge's factual findings, absent some good reason to depart from them. The appeal is dismissed.
The Court orders that the appeal be dismissed.

Orders