Smith v Police - [2016] NZHC 2537

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 Respondent

Judgment:

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Police

Details

AGLC: Smith v Police [2016] NZHC 2537
Case: [2016] NZHC 2537
Decision Date: 25 October 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Robert Smith, contested his conviction by the District Court on two charges: receiving a stolen motor vehicle and possession of an offensive weapon. Smith argued that the District Court Judge erred in her assessment of the evidence, leading to a miscarriage of justice. The legal issues centred on whether the Judge applied the correct legal standards in assessing Smith's recklessness regarding the stolen vehicle and his intent to use the hatchet as an offensive weapon. The Court examined the evidence and the Judge's findings to determine if there was a misapplication of the law that could have affected the trial's outcome. The Court concluded that while the Judge's assessment of Smith's recklessness was appropriate, the evidence did not sufficiently prove that Smith intended to use the hatchet as an offensive weapon. Therefore, the appeal against the conviction for possessing an offensive weapon was allowed, and the conviction was set aside. The appeal against the conviction for receiving stolen property was dismissed. The sentence for the remaining conviction was deemed appropriate, and no further action regarding sentencing was required.

Orders