R v Dar - [2007] NZCA 140

IN THE COURT OF APPEAL OF NEW ZEALAND
CA221/06
[2007] NZCA 140
THE QUEEN
v
SOHAIL REZA DAR
Hearing:27 March 2007

Court:Chambers, Chisholm and Gendall JJ
Counsel:O E Harold for Appellant

K B F Hastie for Crown

Judgment:19 April 2007 at 2 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed.
B        The conviction is quashed.
C        A verdict of acquittal is entered.
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REASONS OF THE COURT
(Given by Chisholm J)
[1]       Part way through his trial before a Judge and jury in the District Court at Tauranga the appellant pleaded guilty to a charge of burglary which alleged that he had entered an enclosed yard, namely an avocado orchard, with intent to commit a crime therein (steal avocados). He now appeals against his conviction on the basis that when he pleaded guilty he was unaware that he had a defence: that the avocado orchard did not constitute an “enclosed yard” for the purposes of s 231 of the Crimes Act 1961.
[2]       After the appellant entered his plea he was sentenced by Judge I B Thomas to 140 hours community work and ordered to pay reparation of $300. The appellant also appeals against this sentence on the basis of disparity with the sentence imposed on his co-offender, who was discharged without conviction pursuant to s 106 of the Sentencing Act 2002.
Background
[3]       The appellant and his co-accused were tried jointly. It was alleged by the Crown that on 14 July 2005 the appellant had cut the wires of a boundary fence and entered into the avocado orchard for the purpose of stealing avocados. The Crown also alleged that his co-accused, Adrienne King, threw away wire cutters that had been used to cut the fence and was thereby an accessory after the fact. Both had pleaded not guilty.
[4]       By the end of the first day of the trial (12 June 2006) five witnesses had given evidence for the Crown. Although the Crown had not formally closed its case, we understand that no further witnesses were to be called in support of the Crown case.
[5]       The evidence established that the appellant and Ms King had parked their vehicle behind a disused poultry shed adjacent to the southern boundary of the avocado orchard, that the appellant had cut the wires of the boundary fence, entered the orchard, and commenced picking avocados. A large pile of avocados was later found on a sheet within the orchard. The fruit had not been picked by or on behalf of the complainant or with his authority.
[6]       Ms King was located by the police in the car parked behind the disused poultry shed. A police dog then led its handler from the car, through the cut in the fence, to the pile of avocados, and ultimately to the appellant. By this time the appellant was with another police officer who had found him walking along the side of the State Highway adjacent to the orchard. The appellant claimed that…

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 R v Dar

Details

AGLC: R v Dar [2007] NZCA 140
Case: [2007] NZCA 140
Decision Date: 19 April 2007

CaseChat Overview and Summary

Sohail Reza Dar appeals his conviction and sentence for burglary under s 231 of the Crimes Act 1961. Dar entered an avocado orchard with intent to commit theft, but claims he was unaware that the orchard was not an "enclosed yard" as required by s 231(2). The Court of Appeal examines whether the orchard constituted an "enclosed yard" for the purposes of the Act. The evidence presented was vague and contradictory, and the Court found that the orchard was not sufficiently enclosed to constitute an "enclosed yard". Therefore, the essential ingredient of the burglary offence was not satisfied, and the conviction cannot stand. The appeal against conviction is allowed, and the conviction is quashed. The Court does not need to consider the appeal against sentence as the conviction has been quashed.

Orders