Smith v Police
[2016] NZHC 2537
•25 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000279 [2016] NZHC 2537
BETWEEN ROBERT SMITH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 October 2016 Appearances:
G Vear for the Appellant
DMA Wiseman for the RespondentJudgment:
25 October 2016
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 25 October 2016 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Crown Solicitors, Auckland
Public Defence, Auckland
SMITH v POLICE [2016] NZHC 2537 [25 October 2016]
Introduction
[1] Mr Smith was found guilty of receiving a stolen motor vehicle1 and possession of an offensive weapon2 following a Judge-alone trial in the District Court.3 He appeals the receiving conviction on the basis that the Judge erred in finding that he was reckless as to whether the vehicle was stolen. He appeals the
offensive weapon conviction on the grounds that the Judge erred in concluding that his hatchet was an offensive weapon.
Offending
[2] On 4 August 2015, Mr Clinton, from a car collection company, received instructions to meet with a Mr Smith about the purchase of a blue Honda CRV motor vehicle. The meeting place was the side of Leo Rd, Glen Eden.
[3] When Mr Clinton arrived, Mr Smith was standing next to a red Honda CRV vehicle. It had no registration plates and no identification tags. Mr Smith gave Mr Clinton his driver licence, which Mr Clinton noted in his records.
[4] Mr Clinton obtained a vehicle identification number off a back window of the vehicle and used that information to check whether the vehicle was stolen. Mr Smith waited while Mr Clinton completed this inquiry. Mr Clinton established that the vehicle was stolen and informed Mr Smith that he would be unable to accept it on that basis. Mr Clinton’s evidence was that Mr Smith could have responded, “Sweet as” or “Shit, is it stolen?”
[5] Mr Smith and an unidentified woman accompanying him then left. Mr Smith was driving in a silver Holden Rodeo vehicle, and the unidentified woman left driving the CRV vehicle.
[6] The police subsequently located the silver Holden Rodeo at a petrol station. Mr Smith was at the petrol station with two unidentified females. He was located in
1 Crimes Act 1961, s 246.
2 Crimes Act 1961, s 202(4)(a).
3 New Zealand Police v Smith [2016] NZDC 9114.
the toilet inside. During a search of the Rodeo vehicle a hatchet was located between
the driver’s seat and the door-well.
[7] Mr Smith was questioned by the police. The questions and his answers were
recorded in the officer’s notebook as follows:
Q: Tell me about the stolen car you were trying to sell.
A: I was just asked to be there to give my driver’s licence.
Q: Who asked you to be there?
A: I don’t know the person’s name.
Q: What address on Leo Street were you at?
A: I just went to the vehicle on the side of the road, I didn’t go to an
address.
Q: How did you know the vehicle was there? A: Someone told me to go there.
Q: Did you drive the vehicle from Leo Street? A: No.
Q: Why did you leave?
A: Once I knew it was hot, I left.
Q: Located in your truck registered to you was a hatchet between the
driver’s door and driver’s seat. Can you tell me about that? A: It’s a tool to break roofing tiles and dents.
Q: Why is it between the driver’s seat and driver’s door?
A: ‘Cos I put it there when I cleaned out my vehicle, I forgot to put it in
the boot.
[8] Mr Smith refused to sign the notebook. Mr Smith was subsequently arrested on suspicion of the charges. He refused to do a DVD interview with the police and did not give evidence at trial.
[9] During a subsequent search of the area around the petrol station two vehicle registration plates were located in a rubbish bin nearby. One of those registration plates was for the Honda CRV vehicle.
District Court trial
[10] Mr Smith was tried before a Judge alone during a one day hearing on
17 May 2016. The police called evidence from the owner of the vehicle; Mr Clinton from the car collection company; and the Constables involved in the vehicle stop at the petrol station and the subsequent search.
[11] The Judge reviewed the evidence called by the police in relation to the receiving charge. On the basis of that evidence, the Judge found that it was Mr Smith who was associated with the stolen vehicle; that he was to receive the monies for that stolen vehicle; that Mr Smith was with his own vehicle later on in an area where the plates of the stolen vehicle were found; and there was no evidence of
others being involved.4 The Judge found that the linking of all these different
aspects of the evidence was sufficient to prove the charge beyond reasonable doubt.
[12] The Judge’s findings in respect of the possession of an offensive weapon charge were as follows:
[16] In terms of the weapon, and in my view it is a weapon because even if it is a proper legitimate work tool, it can still be of course we know as a matter of law, used as a weapon, and it is really the circumstances that are relevant and here we have not a work truck as such, but a normal car with a significant weapon albeit perhaps also used as a work tool, but relevantly in my view right next to the driver’s door in each access [sic].
[17] The fact is it is not with work tools perhaps held elsewhere, perhaps in the boot and again Mr Smith could have given an explanation under oath had he elected to do so and the Court would have had that evidence. He has not sought to put forward under oath reasonable excuse, though I do not overlook the explanation apparently given to Constable Cain where Mr Smith said he had cleaned out his vehicle and had not put the work tool back with other tools or words to that effect.
[18] What I say about that is that it does not appear to me that the vehicle had just been cleaned out. The only cleaning out I suspect that had been done perhaps might have related to the stolen plates off the other car but, in any event, I am left with the fact that even if it is a work tool, where it was situated and in the circumstances overall and in the absence of a proper evidential basis having been given under oath, again in relation to that charge I find that it has been sufficiently proved and rule accordingly.
4 At [14].
[13] The convictions were entered and Mr Smith was sentenced to six months’ imprisonment on each charge to be served concurrently. There was no appeal from that sentence.
Approach on appeal
[14] Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction.
[15] Section 232 provides that the appeal court must allow the appeal if satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or a miscarriage of justice has occurred for any reason.
[16] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity.5 A “real risk” is a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong.6
Receiving
[17] Section 246(1) of the Crimes Act 1961 provides as follows:
246 Receiving
(1) Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.
[18] Mr Smith was convicted on the basis that he was reckless as to whether or not the CRV vehicle was stolen. In Cullen v R the Court observed the following about
recklessness:7
5 Criminal Procedure Act 2011, s 232(4)
6 At [29].
7 Cullen v R [2012] NZCA 413 at [23].
The second issue concerns proof of recklessness. This is the basis on which the Crown put its case in the indictment. If an accused does not know that property has been stolen, to be guilty of receiving stolen property, he or she must be “reckless as to whether or not the property had been stolen or so obtained”. In context, the element of recklessness does not appear to have been considered judicially by this Court. Generally, the concept of the term “recklessness” is regarded, in New Zealand criminal law, as the conscious taking of an unreasonable risk. A complete indifference about whether goods were or were not stolen would, itself, be enough. It seems reasonably clear that if someone receives property, the source of which is unknown, then a conscious risk is taken in determining not to make further inquiries.
(citations omitted)
[19] Mr Smith challenges the conviction on two broad grounds:
(a) The District Court Judge undertook an objective assessment of what a reasonable person would know when dealing with a car rather than assessing Mr Smith’s subjective appreciation of the risk that the vehicle was stolen; and
(b)The Judge’s finding that there was no evidence of third parties being involved was contradicted by the evidence that there was a female present in the discussion with Mr Clinton, and two females present at the time he was spoken to at the service station.
[20] Mr Smith’s first ground of challenge arises out of the Judge’s findings as
follows:
[11] It is to be of course noted that when it comes to motor vehicles, there is a usual process which one might be expected to legally go through in terms of the transfer of the ownership of a vehicle, so the very fact of being involved with the passing over the sale of a vehicle and vouching for it might reasonably indicate that the person is holding themselves out as having the authority to do that and it could be reasonably expected that if one was doing that one would have either the lawful authority from the owner of the vehicle, which clearly was not the case here, or have made some relevant enquiries personally to be satisfied about the legality or arrangements that were being made.
[21] This passage needs to be understood in context. The Judge was reviewing all the evidence relevant to the charge. That included evidence which was favourable to Mr Smith, for example, that he had given his own driver licence, that there were no signs of damage to the vehicle, and that he had waited with Mr Clinton while he
checked the details of the vehicle. It also included other evidence which was not so favourable, for example, the fact that the meeting was on the side of the road, the car had no plates, Mr Smith was the person attempting to sell the vehicle, and he was later found near where the plates for the stolen vehicle were located.
[22] Read in context, I do not consider the Judge was applying an objective test. Rather, she was assessing whether the evidence demonstrated a recklessness on Mr Smith’s part, or an indifference as to whether the car was stolen. I do not consider the Judge erred in this respect.
[23] In relation to the second ground, Mr Smith takes issue with the following
paragraphs of the Judge’s decision:
[13] Mr Smith was in the toilet at the petrol station and although there has been a number of questions from the defence about was there women around, were there others involved who were the real culprits here, there has been no satisfactory evidential basis of this. To put it another way, it may well be, and the Court accepts that hypothetically there were others involved but this is the kind of case which if it was to be suggested by the defence that Mr Smith had been duped by others, let us say, that he might have given evidence of this.
[14] So, just to be clear, there is no legal obligation on him to give evidence but having elected not to give evidence, this deprives the Court of having before it a proper evidential basis upon which it could say Mr Smith really was the innocent party here but what the Court is instead left with is that it was Mr Smith who was associated with this stolen vehicle on this street in Glen Eden. It was Mr Smith who was on the evidence to receive the monies. It was Mr Smith who was with his own other vehicle later on found in the area where the plates off the stolen vehicle were found and there is no evidence of others being involved with this.
[24] It is evident from the decision that the Judge was aware that third parties were present. Much of the cross-examination at trial had focussed on the possible involvement of others, including the unidentified females. Against that background, the Judge’s finding that no others were involved must be understood to mean no others who might be considered the “real culprits” in the offending.
[25] In any event, simply because other third parties may have been involved with the vehicle does not mean that Mr Smith did not have the necessary intent. Even if there had been an evidential error on the part of the Judge, it was not an error which led to a miscarriage of justice, in my view.
[26] The appeal against this conviction is accordingly dismissed.
Possession of an offensive weapon
[27] Section 202A of the Crimes Act provides as follows:
202A Possession of offensive weapons or disabling substances
(1) In subsection (4)(a) offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him or her for such use.
(2) In subsection (4)(b) offensive weapon means any article capable of being used for causing bodily injury.
(3) In this section disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him or her for such use.
(4) Every one is liable to imprisonment for a term not exceeding 3 years—
(a) who, without lawful authority or reasonable excuse, has with him or her in any public place any knife or offensive weapon or disabling substance; or
(b) who has in his or her possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.
(5) It is a defence to a charge under subsection (4)(b) if the person charged proves that he or she did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
[28] Mr Smith was charged under subs (4)(a). It is common ground that the hatchet found in his possession is not an offensive weapon per se. That is because it has a legitimate alternative use, namely use as a roofing tool. The Crown therefore had the burden of proving that Mr Smith intended to use the hatchet to cause bodily injury within the meaning of s 202A(1).
[29] Intention is to be assessed from all the surrounding circumstances of the case.8 It is sufficient if the person in possession of the article intends to use it should
8 Thompson v Police HC Invercargill AP35/96, 6 May 1996 at 5.
certain circumstances prompting its use arise; in other words, a conditional intention is enough.9
[30] Mr Smith submits that the Judge applied the wrong legal test by considering whether the hatchet was capable of causing bodily injury, rather than focusing on Mr Smith’s intention. Further, he submits that the fact that a trade tool was found in the front seat of a vehicle does not establish the requisite intention beyond reasonable doubt. Finally he submits that in considering the question of reasonable excuse the Judge reversed the onus of proof, and effectively required Mr Smith to prove whether there was a reasonable excuse.
[31] As to the first ground, I do not consider the Judge applied the wrong legal test in assessing whether the hatchet was an offensive weapon. The reference to the capability of the hatchet to be used as a weapon (at [16]) was simply one of the factors which the Judge referred to in the course of assessing the evidence of the surrounding circumstances from which intent might be inferred.
[32] Mr Smith’s second ground of appeal which challenges evidence from which intention to cause bodily injury may be inferred, is on stronger ground.
[33] In R v Petrie, the English Court of Appeal allowed an appeal from a conviction of possession of an offensive weapon because the directions to the jury were in error. 10 However, the Court noted that there was ample evidence on which the jury, if properly directed, could have found that the appellant was guilty of being in possession of an offensive weapon.11 The offensive weapon in issue in that case was a cut-throat razor. A fight had ensued after a car in which the appellant was a passenger reversed into the front of a scooter injuring the driver. During the fight it was alleged that the appellant threatened the driver of the scooter with the cut-throat razor and he was in fact wounded by that razor. That was clearly strong evidence from which an intent to use the razor to cause bodily harm could have been inferred
by the jury if properly directed.
9 At 6.
10 R v Petrie [1961] 1 WLR 358 (CA).
11 At 361.
[34] In Thompson v Police,12 Tipping J considered whether the appellant intended to use a baseball bat at the relevant time for causing bodily injury. In that case the District Court Judge had drawn the necessary inference from the fact that there was gang conflict in Invercargill at the time; the appellant had run a few metres towards the entrance of one of these gang headquarters when he saw the police and had thrown the baseball bat over the wall; and he had made statements about the rival gang members driving by at the time. That was held to be sufficient evidence from which the requisite intention could be inferred.
[35] In this case the key evidence relied on by the Judge was the location of the hatchet in the well between the driver’s seat and driver’s door. That evidence had to be weighed with the other evidence adduced at trial. That included Mr Smith’s explanation that it had been placed in that location after cleaning out his vehicle, and had not been put back with the other tools. There was no evidence that the police had checked the boot of the vehicle or made further inquiries to ascertain the credibility of this answer.
[36] Other evidence relevant to intention included the fact that Mr Smith gave his driver licence to Mr Clinton willingly, and waited patiently for Mr Clinton to check whether the vehicle was stolen. That evidence is not suggestive of an intention to use the hatchet to cause bodily injury should the need arise. Nor does it suggest that dealing in stolen vehicles might give rise to a need to use the hatchet as a weapon on occasion.
[37] I consider the evidence of the location of the hatchet, without more, was insufficient to prove beyond reasonable doubt that Mr Smith had an intention to use the hatchet to cause bodily injury. The error has resulted in a miscarriage of justice and I accordingly allow the appeal against conviction in relation to the offensive weapon.
[38] Given this conclusion, it is unnecessary for me to address the third appeal ground regarding reasonable excuse.
12 Thompson v Police, above n 9.
Sentence
[39] That leaves the question of sentence. The Judge imposed a concurrent sentence of six months for both convictions. She referred to the receiving charge as the lead charge but did not identify any discrete uplifts for the weapon charge.
[40] Mr Smith submitted that a sentence of three months for the receiving charge would be appropriate if I was minded to allow the appeal on the offensive weapon conviction, but not on the receiving conviction. The police submitted that the six month concurrent sentence could stand alone.
[41] I have considered the gravity of Mr Smith’s offending in light of starting points adopted in two other cases of receiving a motor vehicle.13 Those cases suggest that starting points of 12 months imprisonment for receiving stolen property of
$5,000 or more are within range.
[42] In this case the value of the car was $4,500. The car did not show any signs of tampering, and Mr Smith’s actions in handing over his driver licence, mitigate his culpability to some extent.
[43] In terms of personal circumstances, Mr Smith has 34 previous convictions stretching back to 2001, including eight convictions for burglary (from 2011, 2008,
2007 (x 3), 2004 and 2001), a conviction for receiving (2008) and theft ex car (2011). He was sentenced to six months imprisonment for the 2011 burglary charge. This would justify an uplift from the starting point in my view.
[44] Taking all these factors into account, I am satisfied that the sentence of six months for the receiving charge can stand alone and this Court does not need to substitute a fresh sentence,14 nor refer the matter back to the District Court for
resentencing.
13 Drake v Police [2015] NZHC 2252; and Te Tai v Police [2015] NZHC 2453.
14 Criminal Procedure Act 2011, s 236(2)(a).
Result
[45] The appeal against the conviction for receiving stolen property is dismissed.
[46] The appeal against the conviction for possession of an offensive weapon is allowed. The conviction is set aside.
Edwards J
0
2
0