Panchal v The Queen - [2011] NZCA 483

IN THE COURT OF APPEAL OF NEW ZEALAND

CA636/2010
[2011] NZCA 483

BETWEEN VINAY PANCHAL
Appellant

AND THE QUEEN
Respondent

Hearing: 12 September 2011

Court: Randerson, MacKenzie and Asher JJ

Counsel: No appearance for or on behalf of Appellant
J M Jelas for Respondent

Judgment: 23 September 2011 at 10 a.m.

(On the papers)

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

When this appeal was called on 12 September 2011 the appellant did not appear and was not represented by counsel. The written submissions filed by the appellant stated that he was living in India after completing his sentence and paying reparation. We indicated in the circumstances that we would deliver a judgment on the papers, based on the written submissions filed by the appellant and respondent.

Background

The appellant appeals against his conviction following a jury trial in the District Court on four counts of receiving stolen property under s 246(1) of the Crimes Act 1961.[1] The appellant was ably represented at trial by Ms A Pinnock who has assisted the appellant in the preparation of his appeal. However, for reasons which it is unnecessary to recite, Ms Pinnock was unable to represent the appellant on appeal.
[1] R v Panchal DC Auckland CRI-2009-004-3553.
The indictment is best explained in tabular form:

Count	Date	Address	Goods received	Complainant
1	29/10/2008	Donegal Street Avondale	Sony Bravia 32” LCD television	A Porter
2	29/10/2008	Donegal Street Avondale	Sony DVD Recorder	A Porter
3	7/11/2008	Blockhouse Bay Road Blockhouse Bay	Panasonic Vierra 42” plasma television	J Roberts
4	7/11/2008	New North Road Mt Albert	Sony Bravia 32” LCD television	M Cruz

The Crown case was that a Mr Narayan was responsible for the theft of the two items from Donegal Street on 29 October 2008. Mr Narayan and a Mr Smalley were jointly responsible for the theft of the items from Blockhouse Bay Road and New North Road on 7 November 2008. The Crown further alleged that on the very day the respective thefts occurred, the appellant met with Mr Narayan and purchased the stolen items at prices well below normal market value.
On 13 February 2009 the police executed a search warrant at the appellant’s home. They located the Panasonic TV stolen from Blockhouse Bay Road and the Sony DVD player stolen from Donegal Street. When spoken to by the police, the appellant stated he had purchased the Sony DVD player from an unidentified associate at a McDonald’s restaurant in Otahuhu. He also stated that he had purchased the stolen Panasonic TV on a separate occasion from the same person. He denied purchasing either of the two Sony Bravia TVs. He stated he did not know the property was stolen.
At trial, the principal evidence adduced by the Crown was:

Evidence from the owners of the stolen goods.
Evidence from a Mr Hamid of purchasing a Sony 32” LCD TV from the appellant.
Evidence from Mr Smalley describing his…

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.

Continue reading Panchal v The Queen

Details

AGLC: Panchal v The Queen [2011] NZCA 483
Case: [2011] NZCA 483
Decision Date: 23 September 2011

CaseChat Overview and Summary

In the case of Panchal v The Queen, the appellant, Panchal, faced criminal charges and the court had to consider the admissibility of evidence of a previous conviction under the Evidence Act 2006. Specifically, the court was tasked with determining whether the evidence of the previous conviction of Mr Narayan, who was allegedly involved in burglaries, was relevant and admissible in the context of the appellant's case. The appellant argued that the text messages indicating negotiations for stolen goods were sent by someone other than Mr Narayan, who was the actual burglar, and thus, the evidence of Mr Narayan's conviction was not relevant.

The court had to address whether the evidence of Mr Narayan's conviction was relevant to the appellant's knowledge of the origin of the stolen property and whether its probative value outweighed any prejudicial effect it might have. The relevance of the evidence was considered high since it directly connected the appellant to the burglaries. The court also had to consider whether the appellant's proposed defence that he was dealing with someone else was sufficiently strong to outweigh the relevance of the evidence. Ultimately, the court found that the probative value of the evidence was significant and that it was directly relevant to the appellant's knowledge of the stolen property's origin.

The court concluded that the evidence of Mr Narayan's conviction was admissible as it was highly relevant to the appellant's knowledge and could not have been obtained from other sources. The court also noted that the appellant's proposed defence was speculative and weak. The court did not find that the admission of the evidence would unfairly prejudice the appellant or unnecessarily prolong the proceedings. The court thus allowed the evidence to be considered in the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The starting point is s 49 of the Evidence Act 2006 which provides:49 Conviction as evidence in criminal proceedings (1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.(2) Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—(a)permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and(b)if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.(3) A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered. A certificate purporting to be signed by a judge, registrar or other officer having custody of the relevant court records is evidence of the conviction of the person charged with an offence and the particulars of the offence charged.[2] However, the evidence under s 49 may not be admitted if it is excluded by any other provision of the Act. [2] Evidence Act 2006, s 139(1) and see Okeby v R [2010] NZCA 519. In relation to the present case, the evidence had to be relevant to an issue[3] and the Judge was obliged to exclude the evidence if its probative value was outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding or would needlessly prolong it.[4] In conducting the balancing exercise under s 8 of the Act, the Judge was obliged to take into account the right of the appellant to offer an effective defence.[5][3] Evidence Act 2006, s 7.[4] Evidence Act 2006, s 8.[5] Evidence Act 2006, s 8(2). In his decision, the Judge recorded that the prosecution had been unable to locate Mr Narayan. He considered that the evidence of Mr Narayan’s conviction for the burglaries was highly relevant since, taken at face value, the text messages showed the appellant negotiating to buy items of stolen property directly from the burglar (Mr Narayan) on the same day the burglaries occurred. This evidence was directly relevant to the appellant’s knowledge of the origin of the property. Plainly, that evidence could not have been obtained from the owners of the stolen goods who did not know the identity of the burglar. The Judge considered that the probative value of the evidence of Mr Narayan’s convictions outweighed any risk that the accused would be unfairly prejudiced in his defence. The appellant’s proposed defence that he was dealing with someone other than Mr Narayan, who was coincidentally in possession of Mr Narayan’s cellphone, was weak and speculative. In any event, it was not known what Mr Narayan’s evidence would be if it was suggested to him that someone else sent the text messages. Finally, the Judge noted it was open for the appellant to call Mr Narayan if he could locate him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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