R v R HC New Plymouth CRI-2006-043-4230

[2008] NZHC 2280

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2006-043-4230

THE QUEEN

v

R

Hearing:         29 April 2008

Appearances: J S Gurnick and C E Clarke for the Crown

K R Pascoe for the Accused

Judgment:      29 April 2008

(ORAL) JUDGMENT OF DUFFY J [Re s 347 Application]

Solicitors:   Auld Brewer Mazengarb and McEwen P O Box 738 New Plymouth 4340 for the Crown

Nicholsons P O Box 68 New Plymouth for the Accused

R V R HC NWP CRI-2006-043-4230  29 April 2008

[1]      Mr R   is on trial and faces one count of blackmail.  The charge is that he threatened to cause serious damage to property (a Hewlett Packard Compaq laptop computer) with intent to cause Alexander McDougall to act in accordance with the will of the said Jamie Mussof R   and to obtain a benefit.

[2]      The essential facts are that Alexander McDougall’s home was burgled and a Hewlett Packard Compaq laptop computer (computer) that was in his possession was among   the   items   stolen   from   his   home.      The   computer   was   owned   by Mr McDougall’s employer, Taranaki Newspapers Limited.  Mr McDougall posted a reward for the stolen computer.   Some two months after the reward was posted Mr R   came to the offices of Taranaki Newspapers and a discussion took place between Mr R   and Mr McDougall regarding the return of the computer and the reward.  I describe this discussion in the most neutral terms possible as there is some dispute between the Crown and the defence as to what was said and the import of what was said.

[3]      We have reached a stage in the trial where the Crown has closed its case. Mr R   has applied for a discharge under s 347 of the Crimes Act 1961.   He submits  that  the  Crown  case  discloses  no  evidence  of  an  intent  on  his  part  to overbear the will of Mr McDougall by threatening that if the reward was not paid, the computer would be  “trashed”.   Mr R   submits  the  evidence  shows  that Mr McDougall was always prepared to pay the reward and so anything Mr R   said about what would happen to the computer, if the reward was not paid, was not said with the intent to overbear Mr McDougall’s will by causing him to pay the reward.

[4]      The Crown says that the reward payment was always optional.  The statement by Mr R   as to what would happen to the computer if the reward was not paid was intended to overbear Mr McDougall's will.  The Crown says this is because the statement was said with intent to ensure that the reward was paid and that there was no backtracking from any idea of making that payment.

[5]      I note that in terms of the notes of evidence (at page 14, line 20), on behalf of

Mr R   it was put to Mr McDougall that:

Q.       He (that being Mr R  ) was there to ensure the third party got the reward that was offered?

A.       Correct.

Q.       And that reward was only offered for the safe return of your laptop? A.     Correct.

[6]      There is no doubt that Mr McDougall had said he would pay a reward if his computer were returned to him; but he could not be legally compelled to pay the reward.  He would always have had the option of deciding that he would not pay a reward to anyone associated with the illegal obtaining of his computer.

[7]      Whether Mr R   said something to Mr McDougall  with  the  intent  of overbearing Mr McDougall’s will is a factual issue ultimately for the jury to decide, drawing inferences from the totality of the evidence.   It seems to me that, as the evidence stands, a reasonable inference that could be drawn from Mr R  ’s statements to Mr McDougall was that the statements were made to ensure that, in fact, Mr McDougall did honour the offer of a reward.  That is by no means the only inference that can be drawn from Mr R  ’s statements.  But the fact that it is a reasonable  inference  that  could  be  drawn  means  this  not  a  case  where  it  is appropriate to remove the case from the jury.

[8]      I cannot, on the basis of the evidence that is before me, say that no reasonable jury could draw the inference that Mr R  ’s comments about what would happen to the computer if a reward was not paid were made without an intent to overbear Mr McDougall’s will so as to ensure that the offer of a reward would be made good.

[9]      The test under s 347 is a high one.  It is not what a jury would do but rather what a reasonable jury could do.  I have to decide whether the evidence is such that no reasonable jury could draw an inference of guilt from all the evidence.   The arguments that I have heard simply do not convince me of that and so for that reason the application is declined.

Duffy J