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.

____________________________________________________________________

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 he had had an argument with his girlfriend and was trying to clear his head. 

[7]       An affidavit sworn by the appellant’s trial counsel, Mr Tennet, indicates that at the end of the first day of the trial he sought bail because the Court was not sitting the next day.  While counsel was on his feet seeking bail, Judge Thomas indicated, according to Mr Tennet, that “he did not see the theft as premeditated and said that he would give a community-based sentence.”  Although counsel had not sought this indication, he found it “quite helpful”.  Ultimately the appellant accepted counsel’s advice that he should plead guilty, but counsel deposes in his affidavit that it was “a reluctant agreement”.

[8]       On the morning of 14 June 2006 the appellant entered a plea of guilty to the burglary charge and was thereupon sentenced by Judge Thomas.  The Court accepted that the appellant had come to New Zealand as a refugee from Iran via Pakistan and that although he is a permanent resident of New Zealand he had not yet gained New Zealand citizenship.  It was also accepted that he has no previous convictions.  Although there is reference to a psychologist’s report in the Judge’s sentencing notes that report is not before us.  As already mentioned, Judge Thomas sentenced the appellant to 140 hours community work and ordered him to pay reparation of $300, being $250 for 125 avocados plus $50 for the cost of repairing the fence. 

[9]       Ms King was sentenced by the same Judge on 19 June 2006.  Like the appellant, she had pleaded guilty part way through the trial.  She was discharged without conviction and ordered to pay $400 towards the cost of the prosecution. 

Section 231 of the Crimes Act

[10]     The offence of burglary is defined by s 231 of the Crimes Act:

231     Burglary

(1)     Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—

(a)     enters any building or ship, or part of a building or ship, without authority and with intent to commit a crime in the building or ship; or

(b)     having entered any building or ship, remains in it without authority and with intent to commit a crime in the building or ship.

(2)     In this section … building means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

(3) …

We have added the emphasis in subs (2) to highlight the words that are critical to the appeal against conviction.  Subsection (3), which details when entry into a building or ship is complete and the effect of a threat or artifice, is of no immediate relevance. 

Appeal against conviction

[11]     It is the appellant’s case that the evidence failed to establish that the appellant entered an “enclosed yard” in terms of s 231(2) because, first, the land involved was much too large to constitute a “yard” and, second, because it is well established by authority that an “enclosed yard” has to be appurtenant to a building.  Mr Harold relies on a number of New Zealand authorities in which the meaning of “enclosed yard” has been considered in the context of s 29(1)(b) of the Summary Offences Act 1981 and its predecessor section in the Police Offences Act 1927.  These include R v Letton [1943] NZLR 687 (CA), R v Otten [1977] 2 NZLR 44, and Hewson v Police HC WHA AP25/97 14 October 1997.  Reference was also made to United Kingdom authorities and to texts. 

[12]     An affidavit sworn by the appellant indicates that when he entered his plea of guilty he was unaware that he had a defence to the charge of burglary if it was found as a matter of law that the avocado orchard was not an “enclosed yard” in terms of s 231(2).  It is apparent from trial counsel’s affidavit that he had not given specific thought to the issue and had not advised the appellant about it.  On that basis Mr Harold submits that a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act has arisen and that under those circumstances the conviction should be quashed.  

Crown’s response

[13]     In response Ms Hastie contends that Hewson v Police establishes that continuous fencing is no longer necessary in order to constitute an “enclosed” area, so long as the property is clearly indicated as private, be it by trees, houses, fences, hedges, or the like.  She also submitted that the authorities decided under the Police Offences Act and Summary Offences Act do not assist in determining the meaning of “enclosed yard” in s 231(2) because a distinction can be drawn between the two pieces of legislation.  Amongst other things she argued that the inclusion of “any closed cave or closed tunnel” in the definition of “building” under s 231(2) and the different underlying purpose of the section distinguishes it from the Police Offences Act/Summary Offences Act provisions. 

[14]     Ms Hastie submitted that it is ultimately an issue of fact and degree whether a particular area is an “enclosed yard” for the purposes of s 231(2).  In her written submissions she claimed that the avocado orchard was completely enclosed and demarcated for private use or for use by those with authority.  However, as a result of questioning from the Bench with reference to the evidence adduced in the District Court, she responsibly conceded that the enclosed yard “would have to be larger than the avocado orchard, but how much larger we do not know”.  The reason for this concession will become apparent in a moment. 

Discussion

[15]     The charge faced by the appellant alleged that on 14 July 2005 he had:

“… entered an enclosed yard, namely an avocado orchard on Kauri Point Road, without authority and with intent to commit a crime therein”. 

One of the essential ingredients of the alleged offence was that the appellant entered an avocado orchard which was an “enclosed yard”.  Unfortunately the evidence defining and describing this enclosed yard is vague and in some respects contradictory. 

[16]     Evidence about the enclosed yard alleged to have been entered was given by Sidney Hopkins, who is one of the owners of the property.  A map showing what is described as “orchard” outlined in pink was produced, along with a booklet of photographs and Mr Hopkins’ hand-drawn sketch showing the boundaries of the orchard and some other features. Some of Mr Hopkins’ references to particular locations on exhibits are simply recorded in the transcript as “about there somewhere” or words to that effect. 

[17]     Because we were uncertain about some of these references we obtained the District Court file so that we could check the original exhibits.  Upon receiving this file we were surprised to discover that many of the 12 documents included in a booklet of maps and satellite photographs prepared by Mr Harold had not been before the jury.  Neither counsel had alerted us to this.  In the event the original exhibits did not assist.  We have restricted our use of the documents that were not before the jury to providing background information that will enable us to more accurately address the issue of whether the orchard was an “enclosed yard”. 

[18]     It is clear from Mr Hopkins’ evidence that the property under consideration was originally run as a dairy farm. From Mr Hopkins’ evidence and the map outlining the boundaries of the orchard it can be deduced that the dairy farm  comprised at least two allotments.  For the purposes of this appeal the Crown accepted that one allotment consists of 8.9142 hectares and the other of 20.3239 hectares, making a total of 29.2381 hectares.  There are also indications from the map produced at the hearing and the hand-drawn sketch that there might be a further block of land across Kauri Point Road, but for present purposes we ignore that possibility. 

[19]     The important point is that only part of the 29.2381 hectares is planted with avocado trees.  Mr Hopkins explained that “our avocado orchard actually extends further north down to a block of kiwifruit opposite McMillan Road which is shown on the big map”.  His hand-drawn sketch outlines what he describes as the avocado orchard.  However, it is apparent from the evidence that apart from the avocado orchard there is a block of kiwifruit, a significant area of open pasture, and an area surrounding the dwelling and farm buildings.  Contrary to Mr Hopkins’ description of the avocado orchard as the area actually planted with avocado trees, one of the exhibits (the map showing the various allotments outlined in pink) outlines the whole of the 29.2381 hectares in pink and defines it as “orchard”.  Thus our reference to the evidence being contradictory. 

[20]     While Mr Hopkins confirmed that the external boundaries of the whole 29.2381 hectares are fenced with a stock proof fence because the property had previously been a dairy farm, the evidence about internal divisions within the property is vague, to say the least.  At one point in his evidence Mr Hopkins appears to indicate that the avocado orchard is “not distinguished” from the open pasture.  Later he said: 

Our orchard since it was taken over from a dairy farm, a lot of the fences have been removed so our house is not exactly fenced off from the orchard …

During re-examination he was asked if the orchard was fenced, either externally or from within the farm.  His answer was that it was fenced externally.  That must mean the southern boundary where the fence was cut by the appellant, the two road boundaries, and the northern boundary. 

[21]     Given that the evidence does not establish that the avocado orchard was “enclosed” from the rest of the farm by fencing, planting or in some other way, Ms Hastie was obliged to concede that the “enclosed yard” relied on by the Crown must be larger than the avocado orchard itself.  Her comment that “how much larger we do not know” was largely prompted by the absence of any evidence about internal fencing or other forms of separation and the inability to resolve that issue by reference to any of the exhibits.  In our view the only safe inference, especially taking into account Mr Hopkins’ answer to the question whether the orchard was fenced externally or from within the farm, is that the only enclosed area is the farm itself, namely the area of 29.2381 hectares.

[22]     Clearly the evidence falls well short of establishing that the avocado orchard, which was identified as the “enclosed yard” in the indictment, was in fact and law an “enclosed yard” for the purposes of s 231(2).  In other words, the Crown failed to establish one of the essential ingredients of the offence of burglary. The appellant’s plea of guilty cannot alter that reality.  While he was probably guilty of theft, the appellant could not as a matter of law be guilty of burglary.  It is well established that a plea of guilty will not prevent the overturning of a conviction if, “on the admitted facts, the accused could not in law have been convicted of the offence charged”:  R v Le Page [2005] 2 NZLR 845 at [18]. See too R v Mohammed CA415/96 13 November 1996. 

[23]     All of this indicates to us that there has been a miscarriage of justice and that the conviction cannot stand.  Given the conclusions that we have reached on the facts it is unnecessary for us to determine the various issues raised by counsel in relation to the meaning of “enclosed yard”. 

Outcome

[24]     The appeal against conviction is allowed and the conviction is quashed. Given that the appeal against conviction has succeeded, it is unnecessary to consider the appeal against sentence. 

Solicitors:
Crown Law Office, Wellington