Rabson v The Queen
[2013] NZCA 152
•15 May 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA544/2012 [2013] NZCA 152 |
| BETWEEN JOHN EDWARD RABSON |
| AND THE QUEEN |
| Hearing: 11 April 2013 |
| Court: Stevens, Allan and Clifford JJ |
| Counsel: A J D Bamford for Appellant |
| Judgment: 15 May 2013 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
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REASONS OF THE COURT
(Given by Allan J)
Introduction
Mr Rabson appeals against his conviction for the theft of a quantity of scrap metal. The charge was laid pursuant to ss 219(1)(a) and 223(c) of the Crimes Act 1961. He was tried together with two associates before Judge Zohrab and a jury in the Nelson District Court. The indictment alleged that the value of the goods stolen exceeded $500. The appeal against conviction is brought on the sole ground that the Crown failed to establish beyond reasonable doubt the value of the goods concerned.[1]
[1]The Crown was required to prove beyond reasonable doubt that the value of the goods stolen exceeded $500: Crimes Act 1961, s 223(c); R v Koura [1996] 2 NZLR 9 (CA).
Mr Rabson was sentenced to 120 hours community work. There is no appeal against sentence.
Background
The Graham Downs Community is established on land near Motueka, owned by the Renaissance Community Trust. Members of the Community engage in co‑operative farming there. Over time the Community acquired or gathered together a quantity of farm equipment and machinery. Some of it was no longer in use, and was stored or placed at various points on the property, often under the shelter of trees.
Mr Rabson and his two co-accused were in the business of dealing in scrap metal. Their practice was to uplift unwanted scrap metal with an owner’s permission and take it away for resale on the basis that they would tidy up and even improve the owner’s property as they worked.
On 28 July 2010, Mr Rabson and Mr McFarland, a co-accused, collected specific items of scrap metal from the Community’s land and took them away in a truck. Members of the Community had authorised them to do so. It was accepted by the Crown that nothing unlawful occurred on that day. But on the following day, 29 July, Mr Rabson, Mr McFarland, and a third co-accused, Mr Kotua, returned to the Community’s land. This time they brought two trucks rather than one. The three men loaded a large quantity of scrap metal onto the trucks. However, later that day, some members of the Community (including trustees) told the accused that they were not entitled to take any further material away. By then the trucks were fully loaded. There was a verbal confrontation which culminated in the accused simply driving the two laden trucks off the Community’s property.
During the confrontation between the accused and Community members, Mr Rabson asserted that the Graham Downs Community was not owned by anybody in particular, that the property and everything on it belonged to all New Zealanders, and that anyone was therefore entitled to take the scrap metal away. He made the same claim to a police sergeant who spoke to Mr Rabson after the incident.
The issue on appeal
Mr Bamford accepts that questions of consent to the taking, and any subsequent revocation of that consent, were matters for the jury. So was the associated question of claim of right. There is no challenge to the way in which the prosecutor put the Crown case on those issues, nor to the summing up, which Mr Bamford accepts was full and fair. But he claims that there is a fatal flaw in the Crown case which has led to the failure of the prosecution to establish the value of the goods allegedly stolen.
When Mr Rabson and his co-accused arrived on the Community property on 29 July, they had already visited other properties and uplifted a certain quantity of scrap metal, so at least one of the trucks was partly laden when it arrived on the Community farm. When the matter was raised with the police (apparently on 30 July), the trucks remained fully loaded. Community members were asked by the police to retrieve the Community’s property from the trucks, which they did. Some of it (mostly horse related heritage items) was taken back to the Community property. But much of it was sold by the Community to a third party for a total of $635. It seems that a very small quantity was left behind altogether, but that is of no moment for present purposes.
Mr Bamford’s argument may be summarised as follows:
(a)There was evidence that the combined carrying capacity of the two trucks was about 2.5 tonnes.
(b)The quantity of scrap metal sold for $635 by the Community was established by a receipt produced in evidence to have weighed 2540 kilograms, close to the authorised load of the two trucks combined.
(c)That scrap must have been unwanted by the Community because it was later sold by them.
(d)Accordingly, the Community must be taken to have agreed to the removal of that quantity of scrap by the accused.
(e)It is necessary also to deduct the scrap metal obtained by the accused from other properties earlier on 29 July.
(f)The remainder of the scrap metal retrieved and retained by the Community must have formed a very small proportion of the whole. Given evidence of the value ($635) of the much greater quantity sold to a third party, the jury could not have been satisfied beyond reasonable doubt that the value of the scrap metal actually stolen exceeded $500.
Discussion
We reject Mr Bamford’s argument. The proper inference from the jury’s verdict is that they accepted the Crown argument (and the evidence supporting it) that consent to take any scrap metal off the Community land on 29 July had been revoked before the two laden trucks left the farm property. In our view it is not tenable to argue that the revocation related only to that portion of the scrap metal that was later taken back by Community members to the farm. It is irrelevant that when members of the Community came to deal with the two truck loads of scrap metal detained by the police, they chose to sell some of it to a third party. There was evidence at the trial that the Community had incurred some costs in retrieving and transporting the scrap metal, and that the sale of some of it to a third party assisted in defraying those expenses.
If consent to the taking of the scrap metal was revoked (and the jury was plainly satisfied beyond reasonable doubt that it was), then it was revoked in its entirety on 29 July before the trucks left the farm. At that time, no-one had turned their minds to the possibility that some of the scrap might later be sold to a third party. That was an eventuality that had not yet arisen, and the scrap to be sold had not been identified. The later sale by the Community could not possibly constitute some sort of partial re-affirmation of the earlier revoked consent. That being so, the Crown had plainly proved that the value of the stolen scrap metal exceeded $500, because it produced a receipt establishing the sale for $635 of a portion only of what was taken away from the farm on 29 July.
Result
The appeal fails and is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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