R v Police HC Whangarei Cri-2006-088-3165

[2007] NZHC 1448

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2006-088-003165

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 December 2007

Appearances: Mr D M Grindle for Appellant

Mr P J Magee for Respondent

Judgment:      12 December 2007

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

Solicitors:

Webb Ross, Whangarel

Crown Solicitor, Whangarei

R V NZ POLICE HC WHA CRI-2006-088-003165  12 December 2007

[1]      Mr R   was charged in the District Court with converting a motor vehicle belonging to one, Abbey Hutchins.    He was also charged with stealing the sum of

$20 in cash being the property of Ms Hutchins.

[2]      At the end of a defended hearing on 28 August 2007 His Honour Judge Harvey convicted Mr R   on the charge of car conversion.    He dismissed the information alleging that Mr R   had stolen the sum of $20 cash.    The Judge then sentenced Mr R   to 40 hours community work and ordered him to pay reparation in the sum of $175.50.

[3]      Mr  R    now  appeals  to  this  Court  against  the  conviction  that  Judge

Harvey entered against him on the charge of car conversion.

The facts

[4]      Many of the facts are not in dispute.    At approximately 4 pm on 5 August

2006 Mr R   was walking along a street in Whangarei.   He saw a motor vehicle parked up a drive and decided that he would use it to drive himself home.   He went up to the motor vehicle and found that it was unlocked.    He then got the motor vehicle to start by breaking a plastic casing surrounding the ignition, and ramming a teaspoon into the ignition barrel.

[5]      At about this time, the owner of the vehicle, Miss Hutchins, came out of the house property.   She and the occupant of the property asked Mr R   what he was doing in the vehicle.   He then asked on a number of occasions whether the vehicle belonged to “Joey”.    After some further discussion he walked off down the drive. Miss Hutchins then called the police and they located Mr R  .   They also found on his person the sum of $20.

[6]      The charge of theft arose from the fact that it was obvious to Miss Hutchins that her vehicle had been searched  and that those responsible for searching the vehicle had taken $20 in cash from her wallet.   The Judge dismissed that charge on the basis that he could not be satisfied beyond reasonable doubt that it had been Mr R   who had taken the cash.    He reached this conclusion having regard to the

fact that the vehicle had been parked at the address in an unlocked state for several hours.    He therefore concluded that it was reasonably possible that a person other than Mr R   had been responsible for removing the cash from Miss Hutchins wallet.

The approach to be taken on appeal

[7]      So far as I can, I propose to adopt the findings of fact that the learned Judge made.    There is a difficulty, however, in assessing the reasoning that he adopted. The difficulty arises from the fact that the transcript of the Judge’s decision is incomplete.   For that reason the Judge has declined to sign the decision.   This is a significant factor in the present case because the transcript becomes incomplete at a critical part of the Judge’s decision in which he discusses his reasons for convicting Mr R  .

[8]      At the commencement of today’s hearing I asked counsel for the appellant whether he sought an order that the proceeding be remitted back to the District Court for re-hearing.    Counsel confirmed that he did not wish that to occur and that he preferred me to deal with the matter afresh, but on the basis of the evidence that had been given in the District Court.   In agreeing to this I acknowledge at the outset that I am placed at a disadvantage, because in some respects I have not had the benefit of seeing and hearing the witnesses in person.   That makes the assessment of matters such as credibility much more difficult.

Decision

[9]      There is no dispute for present purposes that Mr R   was in the process of taking Miss Hutchins' vehicle at the time that she came out of the house.   There may possibly be an issue about whether the taking of a motor vehicle can be complete before it has begun moving.   I have not heard argument on that and prefer to leave the matter open.   Had anything turned on the point, it would have been possible for me to have amended the information so as to substitute the word “use” for the word “take”.   Given the decision that I have reached I do not need to adopt that course of action.

[10]     I therefore proceed on the basis that the prosecution can establish that Mr R   had commenced taking the vehicle by the time he was stopped by Miss Hutchins and the occupant of the house.

[11]     The real issues in the present case arise from the remaining elements of the charge.     In order to establish the charge of car conversion the prosecution must satisfy the Court beyond reasonable doubt both that the taking of the motor vehicle was dishonest and that it was without claim of right.

Claim of Right

[12]     In  the  District  Court,  and  again  in  this  Court,  counsel  for  Mr  R   advanced his client’s case squarely on the basis that Mr R   had a right to use the vehicle.   He submitted that the prosecution could not eliminate a defence based on claim of right.    He advanced the defence case on this basis because the evidence makes it clear that Mr R   knew the occupants of the property where Miss Hutchins’ motor vehicle was parked.     It seems that he visited that property reasonably regularly to visit the occupants of the address.

[13]     In addition, one of the occupants of the address has a white Mazda Familia motor vehicle that is very similar to Miss Hutchins’ vehicle.    That person, whose name is Joellen Pethers, also parks the vehicle in the driveway of the address near to where Miss Hutchins had parked her car on 5 August 2006.     Moreover, Miss Hutchins has on previous occasions allowed Mr R   to drive her vehicles, including the white Mazda Familia.

[14]     Mr R  ’s evidence regarding the circumstances in which he came to be in the vehicle on 5 August 2006 can be gleaned from several passages in the evidence. Mr R   said that when he arrived at the address he knocked on the door and found that no one was home.   He then thought that the white Mazda Familia motor vehicle in the driveway belonged to Joellen, whom he knew by the name Joey.   He decided at that point to use the vehicle to drive home.   By his own admission he had had a considerable amount of alcohol to drink before he had arrived at the address.

[15]     Mr R   said that he knew that Joellen Pethers often went to that address and that she  generally parked down  the  bottom  of  the driveway in  the  general position where the white Mazda Familia was parked on 5 August 2006.

[16]     He then said:

Q.So  you  walked  up  to  the  car,  you  thought  it  was  Joey’s,  what happened next?

A.I thought it was open and opened the door and I was just – her sister was living with us at the time and I was just going to drive home and tell her sister to text her or ring her and let her know that it was up at our place.

Q.       How did you intend to get the car started? A.       With the teaspoon.

Q.       How did you think Joey would feel about that?

A.        She probably would have had something to say but I would have just fixed it and it would have been over and done with.

…

Q.       So you are sitting in the car, and did you use a teaspoon to start it?

A.        Yep,  I  ripped  the  plastic  off  around  the  ignition  and  used  the teaspoon.

[17]     In answer to a question from the Judge as to whether Mr R   had done this to somebody else’s car without permission, Mr R   said “yes”.

[18]     When pressed in cross-examination Mr R   said:

Q.       So because she’s a mate it’s okay to hop in it drunk, yes or no? A.  At the time I obviously thought yes.

Q.       Its okay to do that to a mate’s car, rip off the covering round the

(interrupted)

A.       I had full intentions of replacing it.

Q.       You didn’t think of her needing the car the next day? A.    Would have been able to drive.

[19]     When it was put to Mr R   that he knew that the car in question did not belong to Joey, he said:

A.       This one, no, I thought it was Joey’s.

Q.       … I put it to you, you knew this wasn’t Joey’s car?

A.       No, I thought it was, otherwise I wouldn’t have touched it.

[20]     Counsel  for  Mr  R    contended  on  appeal  that  the  evidence  was  not sufficient to eliminate a defence based on claim on right.    He submitted that the overall tenor of the evidence suggested that Mr R   believed that he was entitled to use the vehicle by virtue of his past relationship with Ms Pethers and the fact that she had previously allowed him to drive her motor vehicles.

[21]     Counsel also referred me to the evidence of Ms Pethers, who confirmed in evidence that she had had no difficulty with Mr R   using her motor vehicles in the past and that she trusted him with them.

[22]     I consider that the flaw in this argument lies in the fact that, by his own admission, Mr R   knew that he did not have Ms Pethers’ permission to take the vehicle.   In referring to the fact that she “would have had words” with him about it, I consider that he was implicitly acknowledging that she would not have agreed to his use of the vehicle, particularly given the fact that he would have needed to damage the ignition in order to start it.

[23]     For these reasons I consider that the learned Judge in the District Court was correct and that a claim of right could not succeed in the present circumstances.

Dishonesty

[24]     I turn then to the second element, which is whether the prosecution can prove beyond reasonable doubt that Mr R   was acting dishonestly.    Although this is an essential ingredient of the charge, it was not a matter that was adverted to by the Judge in the District Court, and I am accordingly required to approach it completely afresh.

[25]     In my view the overall tenor of the evidence makes it clear that, although Mr R   may have known that Ms Hutchins may not have been happy to allow him to use her vehicle in the way that he did, nevertheless the element of actual dishonesty appears to be missing.     It seems to me that the actions of Mr R   were the actions of a drunken person who believed that, although his friend would not be happy about him taking her motor vehicle, nevertheless he did not believe that she would mind provided he fixed any damage that he caused.

[26]     The evidence therefore leaves me in a reasonable doubt in relation to the question of dishonesty and I am satisfied that the charge of car conversion could not succeed on that basis.

Substitution of charge

[27]     However, that is not the end of the matter.   The Court has the power under s 43  of  the  Summary Proceedings  Act  1957  to  amend  an  information  during  a defended hearing.    It may do so in order to conform with the proof.    In my view, whilst Mr R   may not have been guilty of car conversion, nevertheless he did intentionally damage Miss Hutchins’ vehicle.    He did that also, I am satisfied, in circumstances where he knew that she would not have been happy at all about the damage that he was creating.

[28]     In those circumstances I consider that Mr R   has committed an offence under either s 11 of the Summary Offences Act 1981 or under s 269(2)(a) of the Crimes Act 1961.   The ingredients of both offences appear to be the same, with the provisions of the Crimes Act (and the penalty that it attracts) being reserved with more serious circumstances.    I propose to give Mr R   the benefit of the doubt on this point by entering a conviction under s 11 of the Summary Offences Act 1981.

[29]     The maximum penalty under s 11 of the Summary Offences Act 1981 is a fine not exceeding $2000 or imprisonment for a term not exceeding three months.   I am advised from the bar that Mr R   has now completed his sentence of community work and that he has also paid the reparation that the Judge ordered.   On that basis the issue of penalty appears to be moot.   Nevertheless, to bring matters to

a conclusion I propose, with counsel for Mr R  ’s concurrence, to impose the same penalties that the Judge imposed in the District Court.

[30]     On that basis I impose a sentence of 40 hours’ community work and order Mr

R   to pay reparation in the sum of $175.50.

Lang J