R v David John Pickersgill

[2003] NZCA 270

IN THE COURT OF APPEAL OF NEW ZEALAND

CA310/03

THE QUEEN

v

DAVID JOHN PICKERSGILL

Hearing:24 November 2003

Coram:Gault P
Goddard J
Rodney Hansen J

Appearances:  T Sutcliffe for Appellant

A Markham for Crown

Judgment:25 November 2003 

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]       The appellant was convicted of a number of offences relating to a series of burglaries committed over a five-week period in 2002.  On 31 July 2003 he was sentenced to six and a half years imprisonment, and now appeals against his convictions.

The facts

[2]       The appellant was in a relationship with a Ms Nunn for approximately four months, and they lived together for the last two months or so, during which time they were alleged to have committed six separate burglaries on rural properties in the Waikato.  All the burglaries involved residential homes, and with one exception were committed during the daytime.  The property stolen in each incident was very similar, and the location of the houses and the amount of equipment stolen suggested that a vehicle was always used.

[3]       The appellant had been employed briefly at the Ohaupo Takeaways in May 2002, and occupied a flat on the premises.  However, the arrangement did not work out, and he left the job on bad terms with his employers after a few weeks.  On 23 May the house on Kaipaki Road where an owner of the takeaway shop lived was burgled.  Two television sets, a vacuum cleaner, a video and a chainsaw were taken.  Goods corresponding to the descriptions of these items were either sold by Ms Nunn to various second hand dealers in Hamilton, or were located by police when three search warrants were executed at the flat where the appellant lived with Ms Nunn.  In addition, the burglars left two sets of taps running when they exited, leaving the house water-damaged.

[4]       On 29 May, a property at 1799 Waingaro Road was burgled.  The owners identified a television, a distinctive bottle of wine and two petrol containers that were located at the flat as being property that was taken in the course of the burglary.  A camera was also taken and sold by Ms Nunn to a second hand dealer.  This was subsequently recovered by police and identified by the complainants.  A stereo system, CD player and a large number of CDs were also sold by either the appellant or Ms Nunn to dealers that same day.

[5]       On the night of 9 June, Ohaupo Takeaways and its adjoining residence were burgled and a number of items taken.  Some of the stolen property was sold to Waikato Auctions Ltd, a second hand dealer, the next day.  The appellant admitted this burglary, saying that he had felt “ripped off” by his old employers.

[6]       A property on Crawford Road was burgled on 12 June.  A videotape and some CDs taken from the house were located by the Police inside the appellant’s flat.  A television, video recorder, stereo and other electronic items were also taken, and were onsold by Ms Nunn (sometimes accompanied by the appellant).

[7]       The burglars of a house at 1308A Waingaro Road on 21 June were interrupted by neighbours, who saw a woman matching the description of Ms Nunn standing at the doorway to the house.  However, the burglars still managed to take a video player and camera, which were sold to Baders Bargain Centre and Cash Converters respectively.

[8]       A final set of charges related to the burglary of a house at Orini Road on 2 July.  A lawnmower, two video players and a stereo were taken, and the same day the appellant and Ms Nunn sold the lawnmower and the stereo to Baders Bargain Centre.

[9]       The indictment on which the appellant was tried contained 21 counts.  Of these the appellant was charged jointly with the co-accused Ms Nunn on 12, and Ms Nunn was charged alone on the remainder.  The charges Ms Nunn faced by herself were all of fraudulent use of documents in connection with the sale of goods in which she falsely claimed entitlement to sell.

[10]     The appellant had made a videotaped statement to the police in which he admitted some offending.  On arraignment he pleaded guilty to four of the counts in the indictment.  He defended the remaining charges he faced.  He did not give evidence.  He was found guilty by the jury on each of the eight defended counts.  His appeal related only to five of those.  The ground of appeal is that the verdict on each was unreasonable and cannot be supported on the evidence.

[11]     At the trial, because Ms Nunn was jointly charged on all counts the appellant faced, the Crown evidence was given even on those counts on which he had pleaded guilty.  This evidence included the appellant’s videotaped interview which was played to the jury without objection.

[12]     The Crown did not invite the jury to find some pattern or underlying unity in the offending from which they might infer that the accused, if found to have committed one of the burglaries, committed them all.  The case was presented to the jury on the basis that each count was to be considered, and in respect of each accused, separately.  But, of course, that did not mean that the jury could not regard evidence they considered probative as relevant to more than one of the charges.  Such evidence as the relationship between the two accused and their co-habitation clearly was in that category.

[13]     It is convenient to set out the charges against the appellant at this point.

COUNT	PROPERTY AND DATE	PLEA AND RESULT	APPEALED
1	Theft of handbag 20 May 2002	Pleaded guilty	No
2	Kaipaki Road 23 May 2002 Burglary	Pleaded not guilty. Found guilty.	Yes
3	Kaipaki Road 23 May 2002 Wilful damage	Pleaded not guilty. Found guilty.	Yes
4	Theft of motor vehicle 26 May 2002	Pleaded guilty	No
5	1799 Waingaro Road 29 May 2002 Burglary	Pleaded not guilty. Found guilty.	No
6	Ohaupo Takeaways 9 June 2002 Burglary	Pleaded guilty.	No
7	Crawford Road 12 June 2002 Burglary	Pleaded not guilty. Found guilty.	Yes
8	1308A Waingaro Road 20 June 2002 Burglary	Pleaded not guilty. Found guilty.	Yes
9	Arson involving car 28 June 2002	Pleaded guilty	No
10	Orini Road 2 July 2002 Burglary	Pleaded not guilty. Found guilty.	No
15	Using a document 23 May 2002	Pleaded not guilty. Found guilty.	Yes
18	Using a document 14 June 2002	Pleaded not guilty. Acquitted	No

[14]     Counts 1, 4 and 9 were related.  The appellant admitted visiting a property to canvas for tree thinning work and taking a handbag as he left.  He used car keys found in the handbag, returning to the property in company with Ms Nunn and stealing the car.  They used it for a period before driving it to a remote place and setting fire to it.  Ms Nunn drove the appellant back to their house afterwards.  The dates and their co-operation over the period are relevant.

[15]     Counts 2, 3 and 15 were also related.  Counsel accepted that it would be logical to infer that whoever carried out the burglary at the Kaipaki Road address also turned on the taps from which water damage resulted.  Count 15 charged the appellant jointly with Ms Nunn with representing in a document that they were entitled to sell property said to have been stolen from the Kaipaki Road property.  Both names were on the Cash Converter’s receipt.

[16]     In effect, the appeal is concerned with whether there was evidence, admissible against the appellant, on which a reasonable jury, properly directed, could find that the appellant participated in the three burglaries at Kaipaki Road, Crawford Road and 1308A Waingaro Road.

Appeal against conviction.

[17]     Counts 2 and 3 relate to the burglary and wilful damage of the property at Kaipaki Road.  Counsel submits that there was not sufficient evidence linking the first appellant to this offending.  When Ms Nunn sold a television stolen from the property to Cash Converters, the assistant described seeing a Caucasian male in her car with a “hillbilly beard”.  Counsel argues that no evidence was ever given describing the appellant as wearing a beard of any sort.  Similarly, while the appellant’s name was on the receipt provided when a Sanyo video was sold to Baders Bargain Centre, the property schedule produced at trial only listed the video stolen from Kaipaki Road as “possibly Sanyo”.  It was submitted that this was insufficient to establish that the same video that was stolen was later onsold by the appellant.  (The appeal against Count 15 is advanced on these same grounds).  A television stolen from Kaipaki Road was later found at the flat where the appellant had resided with Ms Nunn, but counsel says there is no evidence that he was still residing at that address at the time the warrant was executed.

[18]     Similar arguments were raised in relation to Count 7, which arises out of the burglary at Crawford Road.  It was submitted that the description of the man who accompanied Ms Nunn when she sold items stolen from Crawford Road to the Waikato Secondhand Centre was general, and did not serve to identify the appellant.  He was identified as being present at Baders Bargain Centre when a television and two phones were sold by Ms Nunn, but as the employee could not give a clear description of those items, it had not been established that they were in fact goods stolen in the course of the Crawford Road burglary.

[19]     Count 8 relates to the burglary at 1308A Waingaro Road.  Counsel pointed out that two witnesses gave evidence that they saw a man and a woman at the property, but neither gave any description of the male.  There was also no evidence that the appellant was present when the video taken from the property was sold that same day.

Crown submissions

[20]     Crown counsel submitted that despite attempts by the appellant to “artificially isolate” individual pieces of circumstantial evidence, and to attempt to cast doubt on them, there was ample evidence to put the jury beyond reasonable doubt that the appellant was guilty.  Counsel made the point that the Crown did not have to prove conclusively that the appellant was personally involved in every transaction with the second hand dealers, nor that every item sold to the dealers was stolen.  It was only the essential elements of the burglary offences that needed to be established beyond reasonable doubt, and this had been achieved.

[21]     Counsel rejected a number of the appellant’s challenges to the evidence.  For example, the neighbours who saw the burglars at 1308A Waingaro Road gave evidence of a man matching the appellant’s description, and said he was driving an older model white Mitsubishi Sigma.  The appellant is the registered owner of a white 1986 Mitsubishi Sigma.  Counsel also submitted that while no evidence was led that the appellant had a beard at this time, there was equally no evidence to show that he did not.  Similarly, it was a reasonable inference that the appellant was still residing at the flat with Ms Nunn at the time of the third search warrant, given that when he was interviewed by police six days earlier, he had given the flat’s address as his place of residence.

[22]     Before dealing with the convictions under appeal it is relevant to consider the evidence that was before the jury in respect of the burglaries at 1799 Waingaro Road, Ohaupo Takeaways and Orini Road in respect of which there is no appeal.  Mr Sutcliffe acknowledged that on these the “doctrine” of recent possession made any appeal unrealistic.

[23]     Property taken in the burglary of 1799 Waingaro Road on 29 May 2002 included two television sets, a CD player, a stereo system, a camera and some liquor.  Ms Nunn sold four of these items the following day.  A Goldstar television set and one bottle of wine, eventually identified by the complainants, were located on 5 July 2002 in the course of a police search of the address occupied by the two accused at 6 Gudex Court.

[24]     Property taken in the burglary of the Ohaupo Takeaways premises (to which the appellant pleaded guilty) included television and stereo equipment sold by Ms Nunn to Waikato Secondhand Centre the day after the burglary.  Mr Hyde the owner of the centre gave evidence that Ms Nunn was accompanied by a man he met again and dealt with two days later when he called at 6 Gudex Court to look at other goods Ms Nunn and the appellant wanted to sell and which it was alleged came from the burglary at 362 Crawford Road.

[25]     Property taken in the burglary at Orini Road included a Masport lawnmower, video and stereo equipment.  The same day the appellant and Ms Nunn sold the same lawnmower and stereo to Baders Bargain Centre from which they were recovered.

[26]     We turn then to the burglary at Kaipaki Road, the residence of the proprietors of Ohaupo Takeaways.  There was evidence that the appellant had visited the address in connection with his employment.  He had admitted animosity towards his employers whose other premises he burgled just over two weeks later.  One of the items taken in the burglary on 23 May 2002 was a Hitachi Fujian 14 inch TV set.  That was subsequently located by the police at 6 Gudex Court on 15 July 2002.  That was found in the ceiling and was subsequently identified by the owner.

[27]     There was taken in the burglary a LG 29 inch colour TV set.  The same day also Ms Nunn sold to Cash Converters a TV set of that description.  The same day she and the appellant sold to a second hand dealer a Sanyo video player.  A video player taken in the burglary was described by the owner as “possibly Sanyo”.  Also on 24 May Ms Nunn sold a Jonsored brand chainsaw to Small Motor Dismantlers.  A Jonsored chain store was taken in the burglary.  The dealer recorded in his register the description “Jonsored 2145”.  He said it would not go.  The stolen chainsaw had been described in a schedule of stolen property as “Jonsored 2149”.  There was also evidence that the appellant offered another trader a Jonsored chainsaw but that dealer could not get it to start and did not buy it.  This dealer could not remember the date.

[28]     A vacuum cleaner was also taken from the Kaipaki Road property.  On 28 May 2002 Ms Nunn sold a vacuum cleaner to a second hand dealer.

[29]     It is important to keep in mind, as Ms Markham submitted, that this was a case in which the jury were presented with circumstantial evidence.  The Crown had to establish not that each piece of evidence pointed beyond reasonable doubt to participation by the appellant in the burglary;  rather the Crown was required to establish that taken together the whole of the evidence left no reasonable doubt of the appellant’s involvement.

[30]     Given the clear link established by the location of a television set taken in the burglary in the ceiling of the flat in which Ms Nunn and the appellant lived, and the correspondence between the other items stolen and those sold the same day, it would be a remarkable coincidence if the five property items came from elsewhere.  There is then the fact that the appellant tried to sell a chainsaw that would not work.  He shared the flat and gave 6 Gudex Court as his address at interview just six days before the TV set was located there.  These factors must be considered against the background of a dispute between the appellant and the occupants of the burgled house and the fact that taps were turned on in the house.  A witness described a man in a white car waiting while Ms Nunn sold the LG TV set.  The appellant had a white 1986 Mitsubishi Sigma car.  The appellant’s name was on the dealer’s receipt for the Sanyo video purchased on 23 May.

[31]     All of the matters point to the appellant and Ms Nunn acting together.  Their joint possession of the property so shortly after the burglary gave rise to a strong circumstantial case.  It was open to the jury to find as they did notwithstanding the make of the video player being recalled by the owner as “possibly Sanyo” and notwithstanding the discrepancy in the numbers recorded for the Jonsored chainsaw.

[32]     We are satisfied there was evidence to support the verdicts on Counts 2 and 3.

[33]     As Mr Sutcliffe submitted, it does not necessarily follow that, because the sale of the video player formed part of the circumstantial evidence on the burglary count, the sale of the particular item was proved to the point of establishing the false claim as charged in Count 15.  But that does not mean it was not open to the jury to infer that it was.  We are satisfied the guilty verdict was open.

[34]     The Crawford Road burglary was committed on 12 June.  Five electronic items matching the descriptions of those stolen were sold on the same day to Mr Hyde of Waikato Secondhand Centre.  Two more items were sold two days later.  Other property taken in the burglary was found in the ceiling at 6 Gudex Court and subsequently identified by the owner. 

[35]     Mr Hyde in his evidence described his visit to 6 Gudex Court on 12 June where he purchased four of the items matching the descriptions of those stolen.  He knew Ms Nunn.  He had dealt with her two days earlier when he bought two electronic appliances that were shown to have been taken in the burglary of Ohaupo Takeaways on 9 June to which the appellant pleaded guilty.  On that occasion Ms Nunn had a “chap” with her.  His evidence was that on 12 June the same man was at 6 Gudex Court and that his dealing was with “basically both of them”.  This evidence alone links the appellant clearly with the property stolen from Crawford Road and the very same day.  In consequence it also links the appellant to the property concealed in the ceiling at 6 Gudex Court.

[36]     There is ample support for the verdict on Count 7.

[37]     Count 8 is directed to the burglary at 1308A Waingaro Road on 20 June.  Two items (a camera and a video player) stolen in the burglary were sold by Ms Nunn on 21 and 24 June respectively.  Those items were recovered and identified by the owner.  This burglary was interrupted by neighbours who came to check the property in the absence of the owner following an overnight storm.  A woman fitting the description of Ms Nunn was observed.  She was accompanied by a man whose description was not inconsistent with the appellant.  They drove off in an older white Mitsubishi Sigma Car.

[38]     We consider it was open to the jury to infer from the undoubted involvement of Ms Nunn, their relationship, the observation that a man was at the scene with Ms Nunn, the description of the car, and the admitted activities of the co-accused together at the relevant time, that it was the appellant who was there and was a party to the burglary.  We do not accept that the jury in reaching their verdict on this count must have relied on evidence of statements by Ms Nunn inadmissible against the appellant.  They were clearly directed not to do that.

[39]     It would have been an extra-ordinary coincidence indeed if the person with Ms Nunn at the scene was a man other than the appellant.  This verdict too was open on the evidence.

[40]     Accordingly, the appeal is dismissed.

Solicitors:
Till Henderson King, Hamilton, for Appellant
Crown Law Office, Wellington