S v Police HC Palmerston North CRI-2007-454-48

[2008] NZHC 48

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2007-454-48

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2008

Appearances: J Gore for Appellant

E Killeen for Crown

Judgment:      4 February 2008

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal against a conviction entered in the District Court at Levin after a defended hearing on the 11th of October 2007.

[2]      The appellant had been charged with entering a building – namely the Levin Motor Camp – without authority, with intent to commit a crime in that building; that is, the crime of burglary.

[3]      The evidence before Judge Dawson was broadly to the effect that at about

9.30 pm on the 18th  of May 2007 the manager of the Levin Motor Camp noticed a motor vehicle drive into the camp without its headlights on and that he saw a person

S V NEW ZEALAND POLICE HC PMN CRI-2007-454-48  4 February 2008

alight from that vehicle and move about the camp fairly quickly.   Being dark he could not describe in any detail that person, but saw him or her to get back into the vehicle in what he was pretty sure was the passenger side.   He was not able to describe the driver of the motor vehicle other than it was a person with shorter hair and looked like a male’s head from a distance.

[4]      The manager’s wife, or companion, gave evidence generally to the same effect.

[5]      Items were found to be missing from the kitchen area of the Motor Camp: Namely a microwave, a jug and a sandwich maker.

[6]      Later that evening a vehicle was found to be stopped on State Highway 1 at an address near Tatum Park which is reasonably close to Levin, though clearly it would not have driven directly there given the time that had elapsed, namely about two hours.  That vehicle apparently had run out of petrol but fitted the description of that seen in the Levin Motor Camp.  Two police officers attended upon the vehicle and found the appellant to be a passenger, and the driver being another woman.

[7]      The stolen items – namely the microwave oven, jug and other items – were in the backseat of the vehicle.  The evidence from the officer was that he gave to both occupants of the vehicle their rights under the Bill of Rights Act and he interviewed the appellant whilst another officer interviewed the driver.

[8]      When asked where the items came from in the vehicle the evidence was that the appellant answered, “I took them”, and when asked, “from the Levin Caravan Park?” she answered “Yes”, stating that she did not know why she did it, she was drunk.

[9]      At some point thereafter she signed the officer’s notebook containing what was essentially a confession.

[10]     The appellant gave evidence saying that it was not her who took the items;

that she had been a passenger in the vehicle throughout the evening when it was

being driven by the female driver who was a distant relative of hers, and that it was the driver who had got out of the car, stolen the items, and the appellant knew nothing of this.  She said that she had confessed to the police officer at the roadside because she was upset about something the driver had allegedly said to the police officer which may have incriminated the appellant in driving the car.  She said that she simply wanted to be rid of the police.

[11]     In delivering his  decision  Judge Dawson  outlined  that  evidence,  and  the defence being essentially that the driver was the burglar.  The Judge did not move into the area of whether, in any event, the appellant could have been a party to the crime because she was charged as a principal.

[12]     He said that he did not accept the appellant’s evidence and explanations that she gave, especially given her confession, and he said he preferred the evidence given by the eye-witnesses at the scene; namely that it was a passenger who entered the kitchen premises.

[13]     He found the charge to be proved.

[14]     Mr Gore submitted that the Judge should not have found the charge proven beyond reasonable doubt because it was only supposition that the appellant entered the property.  He said there was no evidence that it was her who alighted from the car nor was there evidence that she touched any items –there being no evidence of any fingerprints on the items.

[15]   He challenged the evidence of the police officer as being evasive and inconsistent and took issue with the police manner of handling the prosecution, complaining about disclosure and giving to the appellant her Bill of Rights warnings at the scene.

[16]     The appeal is against a finding of fact made by a District Court Judge who heard all the evidence of the prosecution and, in addition, the evidence of the appellant.  He was entitled to reject her evidence and her explanation.  Having done

so, he could turn to all the prosecution evidence to determine whether the charge had been proven beyond reasonable doubt.

[17]     Whilst the Judge did not refer to it, the doctrine of recent possession may have had some relevance, given that the appellant had in her possession – or at least the joint-possession of herself and her driver – stolen items reasonably close to the time and distance they’d been taken in a burglary.  Her explanation for possession of them was regarded by the Judge as being false.

[18]     There was evidence that it appeared to be the passenger who came from the car to take the items, and the appellant’s evidence was that she was throughout that time a passenger in the vehicle, not having driven it at any time.

[19]    The evidence was more than sufficient to convict her even without her confession. However, once she admitted the offence at the scene – orally, and then signed the officer’s notebook – the case against her was overwhelming, especially when the Judge rejected her evidence as false.

[20]     Mr Gore argued that the evidence of her confession was unreliable because it had been made in breach of her rights under the New Zealand Bill of Rights Act. But that was never argued before the Judge, nor was there any ruling made, or sought, as to its admissibility.  The evidence was given and admitted by the defence and indeed, when giving evidence herself, the appellant gave an explanation of how she says it came to be that she made that confession.  The evidence was admissible and there is nothing to the appellant’s contention now that somehow it was tainted through the manner in which it was taken.

[21]     The Judge decided a case on credibility, as juries often do, and this Court cannot interfere with his findings.  Her confession drove the nail home so far as Ms S   was concerned, and her appeal has no merit and must be dismissed.

“J W Gendall J”

Solicitors:          J Gore, P O Boxes 178, Levin for Appellant

Crown Solicitor, Palmerston North