R v Police HC Christchurch CRI 2007-409-216

[2008] NZHC 843

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000216

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 June 2008

Counsel:         J P McCarthy for Appellant

S C Poore for Respondent

Judgment:      6 June 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      The appellant was charged that on 1 July 2006 he received a Hewlitt Packard laptop computer valued at $2,000, the property of a Mr Young.   Mr Young is the owner of a business.  Low Cost Tyres in Maces Road, Christchurch.  1 July 2006 was a Saturday.  Mr Young was working at his business alone.  A young man named Porter entered the premises and made inquiry after some tyres.  He and Mr Young spoke for a time.  Eventually, Mr Porter said he wished to discuss the matter with a friend and left the premises.  As he did so, Mr Young observed him to look back over his shoulder in a manner which captured Mr Young’s attention and, it seems,

placed him on his guard.

R V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000216  6 June 2008

[2]      In any event he went about his business and was getting himself a cup of coffee when a second young man came to the premises.  This, it is common ground, was the appellant, Mr R  .  He, too, inquired after tyres.  He wanted a set of 17 inch tyres.  These were in tyre racks to which Mr Young and Mr R   went.  A set of four tyres was shown to Mr R   and there was some discussion concerning price.

[3]      While this was occurring the first youth, Mr Porter, returned to the premises. During the course of the tyre discussion Mr Young could hear a noise which concerned him.  He moved part-way out of the tyre rack area so that he could have a better view.  This enabled him to see Mr Porter coming down the stairs wearing a jacket and holding his arms in a distinctive and unusual manner.  Unsurprisingly, Mr Young said to Mr Porter, what are you doing?  Mr Porter’s response was that he was looking for the toilet.  Mr Young said there was no toilet upstairs and showed him the way to a downstairs toilet.  At this point he, Mr Young, and Mr R  , stood outside the toilet while Mr Porter used it.

[4]      On  Mr  Porter’s  emergence  from  the  toilet  there  was  some  further  brief discussion during the course of which the appellant said that he would not pay more than $200 for the tyres.  This was completely unacceptable to Mr Young.

[5]      The two men then left together.  Indeed, as they departed from the premises Mr Young observed them to break into a run and proceed in the direction of a small side street called Wickham Street.  He quickly checked the upstairs office and found it in disarray and his laptop missing.  He ran outside and endeavoured to persuade another motorist to pursue a vehicle which was just emerging out of Wickham Street at speed.  This car contained the appellant and Mr Porter.

[6]      Arising out of these events this Saturday afternoon Mr Porter separately faced a charge of theft and was convicted upon it.  Initially the appellant was charged with being a party to burglary.   However, eventually the police elected to bring the present receiving charge.

[7]      He  was  not  spoken  to  by  the  police  until  29  August.    At  that  time Mr R   said in a written statement that he had walked to the car, whereas he acknowledged Mr Porter had run.  He said that on reaching the car he saw the laptop from under his friend’s jacket and realised that it was stolen.  He wished to leave, to drive off, without Mr Porter.  However Mr Porter was insistent that he be let into the car and threatened to break windows if Mr R   did not relent.  He eventually did so and the two drove off and, according to the statement, he left Mr Porter a distance away and in possession of the laptop.

[8]      Mr R   also gave evidence in the District Court.  His evidence varied a little from the explanation which he had given in the police statement.   He acknowledged that there was an element of running as he and Mr Porter left the premises  but  essentially he maintained  that  he  was  not  implicated  in  what  had occurred and it was only reluctantly, and because of the threat to his car windows, that he allowed Mr Porter into his vehicle.

[9]      Judge Farish, however, did not view matters in such a benevolent light.  At paragraph [16] of her decision she said this:

Having heard from Mr R   today I am left in the position where I do reject his evidence.  In my view he was evasive.  His answers in relation to how he had left the premises with Mr Porter were inconsistent with the evidence given by Mr Young.  I accept the evidence by Mr Young as to how these  two  young  men  were  behaving  that  afternoon.     I  also  accept Mr Young’s  evidence  as  to  the  speed  the  vehicle  left  and  I  reject Mr R  ’s  evidence  in  that  regard.    Being  in  that  position  I  put Mr R  ’s evidence to one side and I go back and have a look at the prosecution case.

[10]     Continuing at paragraph [18], the Judge said:

I  am  satisfied  on  the  evidence,  particularly  accepting  the  evidence  that Mr Young gave, given his astute and careful way in which he gave evidence particularly with reference to how these two young men acted and in particular Mr R   that Mr R   was aware that his friend had been dishonest.  There is no other explanation as to why he would have taken off from the property in such a way.  The other matter that influences me is that Mr  R    parked  the  vehicle  they  were  using  not  in  the  business premises but around the corner out of sight of the front gate.   This is not consistent with an innocent explanation.   The other matter that I find as being important is the way in which Mr R   and Mr Porter then left the scene.  I do not accept Mr R  ’s explanation that he only let Mr Porter

into his vehicle because he was going to break the windows on the car.  I

reject that part of his evidence.

I am satisfied that Mr R   did receive the laptop.  He received it jointly with Mr Porter and the purpose of him receiving it was to assist in the concealment or disposition of the property and at that time he was well aware that the item had been stolen by Mr Porter only a matter of moments before.

[11]     In my view there is no basis to reject the Judge’s assessment of this case. Section 246 of the Crimes Act 1961 defines the offence of receiving and, in particular, subs (3) provides:

The act of receiving any property stolen or obtained by any other crime is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.  (emphasis added)

[12]     As can be seen, receiving may be committed either exclusively or jointly with the thief.   In the latter case there may be joint possession, joint control or joint assistance in concealing and disposing of the stolen item.  Here, it seems to me, that once the Judge had rejected the appellant’s account that he only drove reluctantly away from the scene, it inevitably followed that Mr R   was implicated in the act of receiving.  He was either in joint control of the laptop with his co-offender, or he was jointly involved in ensuring that the stolen item was removed from the scene of the crime.  In either respect he was guilty of receiving.

[13]     For   completeness,   I   should   refer   to   a   case   which   was   central   to Mr McCarthy’s argument.  This is the Australian decision of Crawford J sitting in the Supreme Court of Tasmania in the case of R v Riley [2002] 134 A Crim R at 493. This, too, was a case of receiving. The appellant was the driver of a vehicle. He picked up three passengers and was conveying them for monetary return. The passengers were in possession of property which he realised had to be stolen. Nonetheless the appellant continued with the relevant journey with the three thieves in his vehicle. The issue was whether thereby he was guilty of receiving.

[14]     The  Tasmanian  definition,  while  not  on  all  fours  with  the  definition  of receiving in New Zealand, does contain the same elements of possession or control. Nonetheless, the Judge found that there was no proof of joint possession or control in

the particular circumstances of that case.  To my mind Mr Riley may have been a trifle fortunate, but more importantly there is a fundamental distinction between the circumstances in Riley and the circumstances in the present case.   Mr Riley was effectively a stranger to the dishonesty until the passengers got into his vehicle and he realised that they were in possession of stolen items.  Here the two young men acted in consort throughout this afternoon.

[15]     They went to the relevant premises together.  There was evidence to indicate that they were perhaps acting together at the time when the theft of the laptop occurred.   Certainly they decamped from the scene together.   And they left the vicinity in the same vehicle and at speed.  These circumstances, to my mind, permit of no other interpretation other than that they were two young men departing the scene of a crime together.  It is for these reasons that I find myself in total agreement with the Judge, that this was an act of receiving because the appellant was in joint control or jointly involved in disposing of the stolen item in the sense of getting it away from the scene of the offence.

[16]     For   the   reasons   I  have   just   given   I   consider   that   Riley   is   clearly distinguishable from the present case and, as I have already made clear, I agree with

the approach of the Judge.  It follows that the appeal is dismissed.

Solicitors:

Sumner Bay Law, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent