T v Police HC Tauranga CRI 2009-470-27

[2009] NZHC 1968

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2009-470-27

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 September 2009 (Heard at Rotorua)

Appearances: N Dutch for the Appellant

H Booth for the Respondent

Judgment:      30 September 2009

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr N Dutch, Barrister, Tauranga

Ms H Booth, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

T V NEW ZEALAND POLICE HC TAU CRI 2009-470-27  30 September 2009

[1]      This is an appeal against conviction for burglary of an old peoples’ home in

Tauranga called Oakland Health.

[2]      The burglary occurred on the evening of 25 August 2008, or at some time in the morning of 26 August, before 8:00 a.m.   8:00 a.m. is when the manager of Oakland Health arrived and went into her office.

[3]      The strongest evidence for the prosecution was Mr T  ’s fingerprint on an ice-cream container in a cupboard in the manager’s room.   Money, valuables and precious keepsakes of the elderly residents were stolen from this office.

[4]      All of the Police evidence was admitted by consent.  There was no challenge, by way of cross-examination or otherwise, to any of this evidence.   In particular, there was no challenge to the evidence that it was Mr T  ’s fingerprint on the ice- cream container in the cupboard.

[5]      Mr Dutch, for the appellant, accepts that if there had been no evidence from or for the defendant the appellant’s conviction for burglary could not have been challenged, having regard to the Police evidence.

[6]      There was evidence from Mr T   and from an associate of his, Mr Baller. When this evidence was given both Mr T   and Mr Baller were in custody in the same prison.

[7]      The essence of Mr T  ’s evidence was that he had lent $200 to Mr Baller. In September 2008 Mr Baller turned up at Mr T  ’s home unannounced.   Mr T   went out to the driveway and jumped into the front passenger seat of the car. Mr T   said there were some items on the seat which he removed so he could sit down.   Mr T  ’s evidence-in-chief was brief.   It occupies one page of the transcript.  There was more extended cross-examination.   At one point Mr T   was asked:

Q.       What about the items that you moved out of the seat that you say.

What exactly was there?

A.        I don’t know, um, the petty cash tin things were closed and there was, ah, the ice-cream container.  I think it had some envelopes or something.  I wasn’t really paying much attention about it.

[8]      I note that this is evidence from Mr T   in respect of an event he says occurred in September 2008.  The evidence was being given on 3 March 2009.

[9]      Mr Baller’s evidence included the following.  He said that on 26 August 2008 he went from Auckland to Tauranga on the run from the Police.   This date of 26

August 2008 was given by him in evidence-in-chief unprompted by any preceding question.  Mr Baller said when he got to Tauranga he saw an associate who told him, in effect, that the Oakland Health premises would be a good place to burgle because there was money and there were valuables.  Mr Baller said he decided to break in. He said he went there at “about 10 to 6” in the evening of 26 August.  He described breaking in and stealing items, including the ice-cream container which had Mr T  ’s fingerprint on it.

[10]     Mr Baller said that once he had left the rest home he remembered that he owed Mr T   money and so went to his home that evening to pay it back.  Mr Baller then describes events broadly along the same lines as given by Mr T  .

[11]     Mr Baller said that he then drove from Mr T  ’s home and went to visit another friend.  The other friend was not at home.  Mr Baller then proceeded with his evidence-in-chief as follows:

So I drove back to Tauranga and on entering the sort of Greerton area I decided to drive back to the scene of the crime to deposit the petty cash and ice-cream container back at the premises to make it look like it was an inside job.

He said that he did in fact go back into the rest home and put the ice-cream container back in the cupboard.

[12]     Judge Ingram, in an oral decision, rejected the evidence of Mr T   and Mr

Baller.  Having set out reasons, the Judge said, at [14]:

The story that has been advanced falls into the category of wild imaginings. I do not accept that there is any credence at all that can be put in the story that has been put before me and I reject the evidence of both the defendant

and Mr Boeller [sic] as to how Mr T  ’s fingerprint got on the blue ice- cream container.

[13]     In view of this finding, the appellant faces the reasonably difficult task of persuading the appellate court that the Judge was in error in his credibility findings.

[14]     Mr Dutch, for the appellant, advanced four principal grounds.  In the barest summary, these were as follows:

a)       Too much weight was placed by the Judge on the failure of Mr Baller, in particular, to recall matters of detail.  Associated with that, it was submitted  that  the Judge drew  inferences  from  the  answers  given which were either not open or in respect of which other inferences were at least equally open.

b)The conviction was against the weight of evidence.   I think I do no disservice to Mr Dutch in saying that this was a broader submission supported by the first just dealt with.

c)       The  Judge  essentially  misdirected  himself  when  considering  the defence evidence.    This submission was concerned with the conventional three part direction given to a jury to the effect that defence evidence might be accepted, might be assessed by the jury as possibly correct or incorrect, or rejected.  The point for the appellant was that the middle ground was not considered.

d)There  was  a  fourth  ground  advanced  in  the  written  submissions directed to the fact that there was questioning of both defence witnesses by the Judge with the submission that it was excessive.  Mr Dutch, following reflection, quite properly withdrew that submission. As I noted to him in the course of submissions, it in fact gave both defence witnesses an opportunity of responding to the sceptical view the Judge had  clearly formed  of  their  evidence  at  the  end  of  re- examination of each of them.

[15]     I have read the evidence of Mr T   and Mr Baller.  I am entirely satisfied that the appellant has failed to meet the onus on him of persuading me that this very experienced Judge was in error in his decision to reject the defence evidence as a fabrication.

[16] The Judge has explained in his oral judgment some of the reasons why he came to the conclusion recorded at [12] above. Some of the points he made, if taken in isolation, probably would not have taken the matter very far. But his findings need to be weighed having regard to the entire process. The Judge, as he heard the evidence, would have formed clear impressions on a variety of things. Not all of these are going to be clearly recorded in an oral judgment and some of the reasons will not be recorded at all. Considering all of the evidence and all of the reasonable inferences that can be drawn from the circumstances in which that evidence was given, and the people by whom that evidence was given (referring here in particular to Mr Baller) I am not at all persuaded that there was error.

[17]     For these reasons, and others which I in turn have not fully articulated, the appeal is dismissed.

[18]     I note for the record that paragraph [11] above was added after delivering my oral judgment in Court.   I intended to record that critical piece of evidence but

inadvertently did not do so.

Peter Woodhouse J