R v Police HC Christchurch CRI 2007-409-143

[2007] NZHC 909

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000143

R

Appellant

v

POLICE

Respondent

Hearing:         13 September 2007

Appearances: A Bailey for Appellant

C E Butchard for Respondent

Judgment:      13 September 2007

JUDGMENT OF FOGARTY J

[1]      Mr  R    was  convicted  of  stealing  a  laptop  computer  from  an  office building in Christchurch on 17 October some time between 5 and 5.30 pm.  This is an appeal against that conviction.

[2]      Mr R   was observed by a witness riding down the lift of the office after

5 pm carrying a silver laptop.   The laptop that was stolen was a silver or light coloured laptop.  It was stolen from a business that had employed Mr R   about three months earlier.   Mr R   worked elsewhere in the building.   There is no dispute that the finding of identification by the Judge that the man observed in the

lift with the laptop was Mr R  .

R V POLICE  HC CHCH CRI 2007-409-000143  13 September 2007

[3]      The basis of the appeal is that the Judge could not have convicted Mr R   of taking the laptop because the man seen in the lift was seen by Mr Lawrie some time shortly after 5.05 pm.   Yet Ms Polaschek in the office had heard someone entering the office and use the lift some time after 5.20 pm.

[4]      Alive to the discrepancy in timing between the witness in the lift, Mr Lawrie, and Ms Polaschek, the Judge concluded in his reasoning the following passage:

…  Mr Lawrie said that around about five o’clock, and one must remember that we are not engaged in determining with temporal precision the precise minutes of the day here.

And then later the Judge said:

[13]      The situation seems to me to be this. On 17 October at around about, or between 5.00 and 5.30 pm somebody stole Ms Polaschek’s computer from her business premises.   The issue is one to which s 69A of the Summary Proceedings Act is directed, and that is the question of the identification of the man in the lift, because I have no doubt whatever that the man in the lift was carrying the computer which was stolen.

[5]      The evidence as to time is not assisted by the use of leading questions by the sergeant prosecutor.  He had been directed by the Judge to lead to the point where there are disputes, a normal and admiral direction.  But apparently the sergeant did not identify time as an issue.

[6]      Questioning Ms Polaschek and turning to the question of time he begins:

Q.       Now at about 5pm on 17 August were you at work at your offices.

And then later:

Q.       At about 5.20 what did you hear, or did you hear anything.

[7]      Questioning Mr Lawrie defence counsel said:

Q.       At about 5pm on 17 October last year did you go to Hereford Street

[8]      It is quite possible that the reason Ms Polaschek placed the times she heard what was she thought was some movement or entry into the flat at 5.25 was that she

had been prompted by a leading question:  “at about 5.20”.  Although in fairness it maybe that the police prosecutor was working from her brief of evidence.

[9]      Mr Bailey for the appellant argued that Mr Lawrie was quite firm in his evidence that it was about 5.05.  He put that to Mr Lawrie in three leading questions. It is quite permissible to lead on cross-examination.  But the quality of the answers may be diminished.  He got these answers to the first two questions:

Yes

And then:

Yes it was after 5 o’clock.

And then pushing it a third time he put the question:

Q.       Your best estimate is 5.05.

And he got the answer:

A.       Somewhere around there.

[10]     Mr Lawrie was quite clear that he was keen to get into the office in the building that he was going to and get away because he had a dental appointment later in the day at 5.30.  However, we do not know how far away that was.

[11]     The Judge could not be sure from the evidence whether 5.05 was the time that Mr Lawrie arrived at Level 6 and whether he would have been out of the building before 5.10 as put to him, even though the witness agreed it was somewhere around that time.    The result of the conflict in times between the two witnesses leaves some uncertainty.  It is more likely that the theft took place well before 5.30 and thus before 5.20 than after 5.20, 5.25, as Mr Lawrie is likely to have allowed at least ten minutes to get to his dentist appointment, if not quarter of an hour.

[12]     However, plainly, what impressed the Judge is that on the very evening that a laptop is stolen a former employee is seen in the lift ascending to the ground carrying a laptop of similar description.  That is a coincidence so remarkable that it left the

trial Judge in no doubt that the police had proved the case in spite of there being a degree of uncertainty as to timing between two witnesses.

[13]     The Crown has to prove its case beyond reasonable doubt.  There were flaws in the way the Crown prosecutor was obtaining the evidence-in-chief, all through leading questions.   But I am satisfied that the Crown has proved the case beyond reasonable doubt for the same reason expressed by the trial Judge, the sure proof of identity of  the  accused  in  that  lift  and  carrying  a  similar  laptop.    To  be  sure, Mr Lawrie did not see him carrying the cords and charging unit that went with the laptop.  They could easily have been in his pockets.

[14]     The second part of the appeal challenges the conviction for stealing a laptop valued at $1,200.  The evidence was that the laptop had been purchased for $1,200 in March of the same year which is about six months earlier, plus the witness said it was worth about $1,200.   That  seemed  to  satisfy the  Judge.    However,  it  is  a notorious fact that buying a computer is rather like buying a car, it is always valued less once you have bought it than it is at the time you buy it.  As you walk out the door it loses value.   Certainly, there is no doubt that six months later it would not have been worth the cost at which it was purchased.  Defence counsel put it to the witness that this model could not be bought any more.   The witness was not sure whether it could not be bought any more.  But that only increases my uncertainty as to its value, and my certainty that it would not be worth $1,200.

[15]     Mr Bailey, quite appropriately, said it really made no real difference.   He recognised that if he lost the first point on appeal conviction could be entered under an amended charge: did steal a laptop computer valued at some figure less than

$1,200, and it would not have affected the fine.

[16]     I observe it is another case where the police have over-charged in a situation where they would have been much safer charging more conservatively, there being no likely difference in the fine.   Judges are not particularly impressed by the maximum term of imprisonment for theft when they are really focussing, as they are required to do under the Sentencing Act 2002, on the actual value of the items stolen and all the other circumstances of the theft.

[17]     Accordingly,  the  appeal  is  allowed  to  the  extent  of  setting  aside  the conviction of stealing a laptop computer valued at $1,200, the property of Ann Polaschek and substituting a conviction for stealing a laptop computer valued at at least $500 the property of Ann Polaschek, Crimes Act 1961 s 223(c).  The reparation order will be adjusted to $500.  I am not sure of the total value.  It was not proved on the evidence but that would be a fair reparation as, it being a business laptop, depreciation would be claimed against the purchase price in any event.   The fine remains the same.

Solicitors:

A Bailey, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent