Te Aho v Police
[2015] NZHC 523
•27 March 2015
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2015-416-004 [2015] NZHC 523
BETWEEN THOMAS JACK TE AHO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 March 2015 (with subsequent memoranda received on 26
March 2015)
Appearances:
N Wright for Appellant
R Guthrie for RespondentJudgment:
27 March 2015
JUDGMENT OF LANG J [on appeal against conviction]
Solicitors:
Crown Solicitor, Napier
TE AHO v NEW ZEALAND POLICE [2015] NZHC 523 [27 March 2015]
[1] Following a defended hearing in the District Court, Judge Adeane convicted Mr Te Aho on a charge of receiving stolen property in circumstances where he was reckless as to whether or not the property had been stolen.1 Mr Te Aho appeals against conviction.
Background
[2] A residential property in Gisborne was burgled on the evening of
2 September 2014. A large quantity of items was taken during the burglary. These included several wetsuits, bicycle helmets and items of electrical equipment.
[3] Shortly after the burglary, the police discovered that it had been carried out by a Mr Dibben. He told them that he had deposited a significant proportion of the stolen property with Mr Te Aho. This prompted the police to execute a search warrant on Mr Te Aho’s address on 4 September 2014. At that time Mr Te Aho was renting a bedroom in a communal boarding house. Inside Mr Te Aho’s bedroom the police found many of the items stolen in the burglary, including several wetsuits. When the police questioned Mr Te Aho regarding the source of the property, he told them that he was “not a nark”.
Ground of appeal
[4] The sole ground of appeal advanced at the hearing was that the Judge had erred in proceeding on the basis that there was no contest regarding the fact that Mr Te Aho was in possession of the stolen property when the police searched his bedroom. As a result, Ms Wright contended that the Judge never turned his mind to the issue of whether the Crown had satisfied the legal elements of possession.
[5] Ms Wright’s argument on this point was founded principally upon a submission that Mr Dibben had retained control over the items notwithstanding the fact that they were ultimately found in Mr Te Aho’s bedroom. This argument faced several difficulties. The first was that Mr Te Aho gave evidence in his own defence
and told the Judge that he had agreed to a request by Mr Dibben that he store the
1 New Zealand Police v Te Aho DC Gisborne CRI-20145-016-001938, 16 February 2015. The charge was laid under s 246 of the Crimes Act 1961.
property for Mr Dibben. As a result, Mr Te Aho had physical custody and control of the items. He also knew that they were in his possession, and he clearly intended to exercise control over them. This is sufficient to satisfy the legal elements necessary to prove that Mr Te Aho took possession of the items even though he did so at Mr Dibben’s request.
[6] Secondly, there was nothing to prevent the items being in the joint possession of both Mr Dibben and Mr Te Aho. Section 246(2) of the Crimes Act 1961 provides that the offence of receiving is complete as soon as the offender has, either jointly with the thief or any other person, possession of, or control over, the property.
[7] Mrs Wright sought further time within which to file submissions dealing with this issue, but has now confirmed that she accepts there was sufficient evidence to enable the Judge to conclude that Mr Te Aho was in possession of the stolen items at the time the police found them in his bedroom. Mrs Wright now seeks, however, to advance an argument to the effect that the Judge should not have concluded that when Mr Te Aho received the items from Mr Dibben he was reckless as to whether they had been stolen.
[8] Part of Mrs Wright’s argument on this point was based on a submission that Judge Adeane was wrong to reject Mr Te Aho’s evidence that he did not suspect that the items were stolen when he received them from Mr Dibben. She points out that his evidence was supported to some degree by the evidence given by other witnesses called by the defence. I do not accept that I should interfere with the Judge’s assessment of Mr Te Aho’s credibility. He was uniquely placed to make that assessment because he heard and saw the witnesses. Although an appellate court is entitled to reach its own decision on an appeal by way of rehearing, it is likely to defer to the decision of the court at first instance where assessments as to the
credibility of witnesses are important.2
[9] Several factors also pointed to the fact that Mr Te Aho suspected that the items that Mr Dibben left with him had been stolen. The most important of these
was Mr Te Aho’s acknowledgment when he gave evidence that he had said to Mr
2 Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2003] 2 NZLR 141 at[5].
Dibben that he hoped the items were not stolen. This demonstrates that he appreciated the possibility that they might be stolen at the time he received them. Mr Te Aho’s comment to the police that he was “not a nark” also provides some insight into his view of Mr Dibben’s actions. Furthermore, shortly after receiving the items Mr Te Aho sent a text message to an unknown person saying that he had some wetsuits. The clear implication from this is that Mr Te Aho was advising this person that he had wetsuits for sale. It is difficult to see why he would have done this if he believed that he was storing the property for Mr Dibben.
[10] As Mrs Wright points out, Mr Te Aho gave explanations for each of these factors when he gave evidence before the Judge. It was for the Judge to determine the weight to be given to Mr Te Aho’s explanations, however, and he clearly gave them little weight as he was entitled to do. I therefore consider there was ample evidence to permit the Judge to conclude that Mr Te Aho suspected the property might be stolen, and elected to take possession of it notwithstanding that risk.
Result
[11] The appeal is dismissed.
Lang J
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