R v Colyn David Stoves

[2003] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

CA138/03

THE QUEEN

v

COLYN DAVID STOVES

Hearing:28 October 2003

Coram:Tipping J
Rodney Hansen J
Paterson J

Appearances:  Appellant in person

B M Stanaway for Crown

Judgment:30 October 2003 

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1]       Colyn David Stoves appeals against his convictions for theft and attempted theft, and the sentence of nine months imprisonment which was imposed upon him by the District Court at Christchurch.  Mr Stoves was tried on an indictment containing four counts.  He was convicted on the first three and acquitted on the fourth.  The three counts which attracted convictions were (1) stealing a hydraulic ram, the property of Maugers Contracting Ltd; (2) attempting to steal another hydraulic ram, also the property of Maugers Contracting Ltd; and (3) stealing a hydraulic ram, the property of Isaacs Construction Ltd.

[2]       Mr Stoves raised a number of matters in support of his contention that he had been wrongly convicted on the first count.  They included insufficiency of evidence and an attack on the search warrant which was executed at his address.  On those matters we consider that Mr Stoves’ argument cannot succeed.  There was sufficient evidence to demonstrate that the hydraulic ram in question was owned by Maugers Contracting Ltd.  Although the hydraulic ram was not specifically the subject of the search warrant, it was not unreasonable in the circumstances for the police to have seized it.  We are, however, of the view that Mr Stoves’ submission concerning the Judge’s summing-up on this count is a valid one.  We recognise that the proposition the Crown had not proved that Maugers Contracting Ltd was the owner of the ram may have been the primary focus of Mr Stoves’ defence.  Nevertheless there was a second point which Mr Stoves had clearly raised before the jury, namely his proposition that even if the ram belonged to Maugers he had come by it innocently. 

[3]       Unfortunately the Judge misdirected the jury on this aspect of the matter, by telling them that if they were sure about the identification of the ram, ie. that it came from a Mauger’s machine, it was their duty to find Mr Stoves guilty.  Although there was a later reference to Mr Stoves’ explanation for how he had come by the ram, the Judge left no room for this explanation to operate by telling the jury that it was their duty to convict if the Crown had proved ownership.  We do not consider this to be a point upon which the proviso to s385(1) of the Crimes Act 1961 can be applied.  The Judge’s direction was patently and fundamentally wrong in the light of the second point which Mr Stoves was entitled to have clearly placed before the jury and not in effect taken away from them. 

[4]       We are unable to accept in this respect Mr Stanaway’s attractively presented argument that Mr Stoves’ contention that he had acquired the ram innocently was necessarily based on the item not being Maugers' property.  While the innocent acquisition explanation may not have been a particularly strong one in context, Mr Stoves was entitled to have it considered by the jury without the Judge having given a direction which in effect took the point away from them if they literally followed the direction, which one must assume they did.  The appeal must therefore be allowed, at least to the extent of quashing the conviction on count 1. 

[5]       Count 2 involved an allegation of attempting to steal another ram.  As the count indicates, this particular ram was not in fact stolen.  The case depended essentially on what were alleged to be Mr Stoves’ fingerprints being found on and near the ram.  He argued that the Crown had not sufficiently established that the prints were his by reference to enough specific points of comparison.  The difficulty with this argument is that the relevant evidence was admitted by consent before the jury, and there was therefore no cross-examination on it.  The evidence was simply read to the jury.  It is not open to Mr Stoves to attack the sufficiency of this evidence in those circumstances.  We add, for completeness, that it seems to us that the evidence was in any event sufficient to demonstrate, beyond reasonable doubt, that the prints were those of Mr Stoves.

[6]       We turn now to count 3, which involved theft of the ram belonging to Isaacs Construction Ltd.  The search warrant point cannot apply to this charge because this item was specifically referred to in the application for the warrant.  Mr Stoves raises again the insufficiency of the fingerprint evidence and also an argument based on the incompetence of counsel.  This latter point applies also to the argument in relation to count 2, the attempted theft.  We reach the same conclusion in relation to the fingerprints on this count as we did in relation to count 2.  The evidence was more than sufficient to establish that the prints had been deposited by Mr Stoves on the hydraulic digger boom from which the ram was removed.  We note that Mr Stoves was not able to offer any explanation why his fingerprints were located on this piece of machinery.

[7]       That brings us to the general allegation of counsel incompetence.  We refrain from discussing the points relevant only to count 1 as the conviction on that count is being quashed for other reasons.  What remains is insufficient to justify the appeal being allowed on the grounds that counsel did not adequately represent the accused.  The matters which Mr Stoves raised seem to us to be explicable as perfectly sensible tactical decisions made by defence counsel in what was not an easy case from the defence point of view.  It can be noted that counsel’s performance was sufficient to obtain an acquittal on count 4.  We do not consider that counsel has been shown to be wanting in relation to any fingerprint issue, which is essentially all that remains, once the count 1 points become redundant.  We should say for completeness that, having examined all Mr Stoves’ written evidence and argument we are not persuaded that his convictions on either count 2 or count 3 should be quashed on any ground related to the adequacy of his representation at trial.

[8]       We now turn to the appeal against sentence.  Mr Stoves has fully served the sentence imposed by means of two months in custody and ten weeks on home detention.  There is no doubt that count 1 was the most serious count and the conviction on it must be quashed.  As the sentence has been fully served, there is no question of our directing a new trial.  Ordinarily the Court would adjust the sentence to reflect the fact that an important count no longer features.  However, there is an unusual dimension to this aspect of the case.  Mr Stoves had earlier pleaded guilty to another matter and it appears that he has never been formally sentenced on that other matter.  Following a discussion with Mr Stoves and Mr Stanaway, Mr Stoves agreed that he would not pursue the appeal against sentence and thus risk being called on for sentence on the matter which remains outstanding.  Mr Stanaway indicated that in these circumstances the Crown would not seek to pursue the other matter.  We can indicate that if by any chance the outstanding matter does arise in the future we consider it would be appropriate for Mr Stoves to be convicted and discharged upon it.   The nine months sentence which he has now fully served would, in our view, have been adequate even if the further matter had been included in those which were being dealt with by the Judge at the time he imposed the nine months sentence.

[9]       The formal outcome of the appeals is therefore:

[1]The appeal against conviction on count 1 is allowed.  That conviction is quashed and there will be no order for a re-trial.

[2]The appeal against conviction, so far as it related to counts 2 and 3, is dismissed.

[3]The appeal against sentence is dismissed.

Solicitors:

Crown Solicitor, Christchurch