R v M HC Wellington CRI-2006-091-2105

[2007] NZHC 1662

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-091-2105

THE QUEEN

v

M

Hearing:         23 February 2007

Appearances: D La Hood for the Crown

T Blake for the accused

Judgment:      23 February 2007

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an application for discharge under s 347 of the Crimes Act 1961.  The accused and Mr Way face a joint charge of receiving.   The accused also faces a charge of blackmail and Mr Way a charge of accessory after the fact to blackmail.

[2]      The charges relate to the circumstances in which a bronze statue which had been stolen from premises at Waikanae Beach was returned to the owners.   The grounds of the application are that the prosecution is incapable of making out the essential elements of the charge of blackmail; the prosecution case is incapable of making out the essential elements of the charge of receiving; and that a conviction for receiving would not be justified in a case where the accused person had taken possession of stolen property for the purpose of returning it to the owner (and that

being the evidence in this case).

R V M HC WN CRI-2006-091-2105  23 February 2007

[3]      The test to be applied on an application such as this is, as counsel for the

Crown submits, well settled and was explained in Parris v Attorney-General [2004]

1 NZLR 519. In essence, it is that, where there is evidence sufficient in law, if accepted, to prove the case, the case is to be left to the jury unless there are some other grounds for discharge. If there is some evidence which, if accepted by the jury, is capable of proving the elements of the offence beyond reasonable doubt, then the case must be left to the jury.

[4]      Briefly, the facts as the Crown alleges them here are that some time overnight on 6 and 7 October a valuable bronze sculpture was stolen from the grounds of a restaurant in Waikanae Beach.  That was a large statue standing approximately three metres high and three metres in length.  The owners reported the theft, and there was extensive media publicity initiated in their efforts to recover the statue.  A reward was offered for its return.  The sum was in the advertisements offering it unspecified, but a figure of $6,000 was mentioned on television.   On 18 October, the accused contacted the editor of a local newspaper and asked the editor to assist in brokering an arrangement to obtain the reward for the return of the sculpture.   The accused with the editor visited one of the owners at the restaurant, and a video showing the statue was shown to her.  She agreed to pay the $6,000 reward and plans were made to arrange the exchange of the money for the sculpture.

[5]      The accused subsequently phoned the newspaper editor and told the editor that a figure of $10,000 was required, otherwise the sculpture would be destroyed and cut down for scrap.  The editor’s evidence was that the accused had made it clear that the demand was not coming from the accused but  from the thieves.    That emerged in cross-examination at depositions.

[6]      The editor relayed that development to the owners.  They agreed to meet the extra $4,000.  The accused and Mr Way then delivered the sculpture to an address in Waikanae in a van.  The statue was unloaded from the van, and the accused was then given the $10,000 in cash.

[7]      Dealing  first  with  the  application  so  far  as  it  relates  to  the  offence  of receiving, the offence of receiving is set out in s 246 of the Crimes Act.  On a literal

reading of the section, the evidence as I have described it would be sufficient to support the charge.   Section 246 does not explicitly require any particular intent beyond that which is involved in receiving the property with the knowledge that it has been stolen.  Mr Blake for the accused, however, submits that it is an implicit requirement of the section that the receiver must have the guilty intention of appropriating  the  goods  for  the  benefit  of himself  or  some  other  person  and  a conviction for receiving cannot result when the receiver takes the goods with the intention of returning them to the lawful owner, and he cites the decision in R v Crooks [1981] 2 NZLR 53. In that case the Court of Appeal said on this issue at page 62:

“In our opinion, the crime of receiving stolen goods in terms of s 258 of the Crimes Act 1961 involves, as a necessary ingredient, proof that the goods were dishonestly received.   The receiver must have the guilty intention of appropriating such goods for the benefit of himself or of some other person. Such a question will seldom be in issue, and no direction on the point will be required unless some evidentiary foundation is laid for suggesting that the person charged may have received the stolen property with lawful or honest intent.”

I consider that that statement accurately states the law in relation to s 246, the current section, as well as in respect of s 258, the section as it stood at that time.  The terms of the section have changed by the 2003 amendments but not, in my view, in a way which would affect the applicability of the Court of Appeal’s decision in that case.

[8]      There is some suggestion to the contrary in the note to Adams on Criminal Law at  CA246.07, which suggests that R v Matthews [1950] 1 All ER 137, an English Court of Appeal decision to the effect that such a guilty intention is required, is no longer good law. I do not think that the note can be correct. Matthews was expressly referred to in Crooks in terms which suggest that the Court of Appeal was affirming the tenor of what was there said.  In Matthews, the position had been put very strongly in these terms, at 138:

“The court cannot possibly accept the argument which has been addressed to it on behalf of the prosecution that a person who intends at once to hand to the police, or its true owner, stolen property which has come into his possession, is nevertheless guilty of the felony of receiving stolen property. That is so startling that I am surprised the argument can be put ….”

[9]      Approaching  the  matter then on the basis that  that  additional  element  is required, it is necessary to look at the evidence as it appears from the depositions, to see whether there is a sufficient evidential basis for the proposition that such a guilty or dishonest intention was present here.

[10]     A person who receives property intending to return it only if a reward is paid, the reward having been offered only because of the dishonest actions of a thief, is, in my view, intending to benefit from the dishonesty.   There is not the absence of dishonest intent required to avoid liability.   A person in that situation may, in my view, be said to have the guilty intention referred to in Crooks.

[11]     Mr Blake submits that, even accepting the proposition that a person who retains property until a reward is paid and will return it only if the reward is paid may have the necessary intent, there is insufficient evidence to establish that here. He submits that the statue had been unloaded from the van in terms where it was impossible for the accused to thereafter retain control of it before the reward was paid.  That is a view of the matter which may be open on the evidence.  However, it is a question of fact  for the jury as to  whether the circumstances  in which the property was returned were such as to mean that the accused did or did not have the type of guilty intention to which I have referred.  That is essentially a jury question, and the matter must be left for the determination of a jury.

[12]     The application must accordingly be declined on the receiving count.

[13]     Turning to the blackmail count, the Crown relies on a threat that the statue would be destroyed if the reward were not increased, and submits that that meets the elements of s 237.  Mr Blake submits that the evidence to which I earlier referred indicated that the accused was simply passing on a threat which had been made by others and so could not be guilty of the offence of blackmail.  He submits that at no time, explicitly or implicitly, did the accused threaten to cut the statue up or to tell those who had stolen the statue to cut the statue up.   Mr Blake submits that the accused was simply passing on the threat.

[14]     Whether that is the case or not is essentially a question of fact, which again must be left to the determination of the jury.  It may be that the Crown would wish to consider the form of the indictment and to consider whether reliance ought expressly to be placed on s 66 by alleging that the accused was a party.   That is a decision which the Crown will need to make, and I express no view on the appropriateness of that.  I simply hold that, on the proposition that no threat was made by the accused, I do not consider that it can be said that the evidence is such that an appropriately directed jury could not reach the conclusion that the accused either made or was party to a threat.

[15]     The second contention is that the accused had no  intention to obtain any personal benefit from the threat.   Mr Blake submits that the initial reward offered was for $6,000; that the evidence was that the arrangement was that the accused was to be entitled to retain a part of that sum; and that the amount which he was to retain was not  increased when the amount  of the  reward  was  increased.    That  too  is essentially a factual question, but, even if there were no evidence that the accused were not to receive any additional benefit from the threat, that is not an essential element of the offence.   It is sufficient if the intent is to cause loss to any other person.  It is not necessary for the Crown to rely on the obtaining of a benefit limb of s 237(1)(b).

[16]     Mr Blake further submits that there is no evidence of an overbearing of the complainant’s  will  in  that  the owners,  when  the  threat  was  conveyed  to  them, quickly agreed to increase the reward.   There is nothing in this point.   The reason they agreed to increase the reward was the threat that the statue would be damaged. Whether that was a sufficient overbearing of the complainant’s will is a factual question for the jury.

[17]     The final point is that the making of the threat is in the circumstances a reasonable  and  proper  means  for  effecting  the  accused’s  purpose  in  terms  of s 237(2).  That is an essentially factual question, and, as Mr La Hood points out, is one which is by the decision of R v Alexander v Blake 206 CCC 233, said to be a question which is for the trier of fact to determine. Again that issue must be left to the jury.

[18]     For these reasons, the application must also fail in respect of the blackmail charge.

[19]     For these reasons, the application is declined.

[20]     Following discussions with counsel, I give the following directions:

(a)      The accused is remanded on bail to appear for trial on 28 May 2007. Existing terms of bail are to continue.

(b)      There is to be a call-over on 26 March 2007.   Attendance of the accused at that call-over is excused.  The date is subject to confirmation by the Registrar.

(c)      Mr Blake is to advise any objections to evidence which may have to be the subject of a s 344A application by 9 March 2007.

(d)      Any such application by the Crown is to be filed by 19 March 2007.

“A D MacKenzie J”