The Queen v Joseph William Murray (Senior)
[2003] NZCA 7
•19 February 2003
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA267/02 CA268/02 |
THE QUEEN
V
JOSEPH WILLIAM MURRAY (SENIOR)
JOSEPH WILLIAM MURRAY (JUNIOR)
| Hearing: | 17 February 2003 |
| Coram: | Elias CJ |
| Panckhurst J | |
| Appearances: | P Kaye for the appellants B Northwood for the Crown |
| Judgment: | 19 February 2003 |
| JUDGMENT OF THE COURT DELIVERED BY PATERSON J |
Introduction
Both appellants, who have the same Christian and surnames, are uncle and nephew. They were on 25 June 2002 found guilty by a jury of three counts of stealing a quantity of milk powder, the property of New Zealand Dairy Group. On 7 August 2002, both appellants were sentenced by District Court Judge Harvey to a term of four years imprisonment. They now appeal against both the conviction and sentence.
The ground of appeal against conviction is that there was a miscarriage of justice in that there is now available fresh evidence that is cogent and would have materially affected the verdict of the jury. Leave is sought to adduce this fresh evidence.
Background
The Crown’s case was that there was a large quantity of bulk milk powder stolen from the premises of Linfox Logistics (Linfox) in Manukau City on three separate dates, namely, 1 April 2001, 15 April 2001, and 2 June 2001. A truck and trailer unit rented from Trailer Rentals was seen entering the Linfox premises on two occasions each night. A false registration plate was on each truck. On the first two dates, the truck was hired by one of the appellants. On the third date, it was hired by another person but driven by one of the appellants and it was acknowledged the truck was in the appellant’s possession over Queen’s Birthday Weekend 2001.
At the trial, the Crown called witnesses to establish that the milk powder was missing, that it had been stolen because the prospect of it having been lost or dispatched to the wrong place had been eliminated, that on the dates in question the truck and trailer hired from Trailer Rentals had on each occasion twice visited the Linfox premises, that the truck used on 2 June 2001 had on it a registration plate stolen from a car in South Auckland, and that the other number plate stolen from the same car was subsequently found at the address of Mr Murray Snr.
During the afternoon of the second day of the trial, and before the Crown evidence had been completed, there was introduced into the evidence a concession by both appellants made pursuant to s 369 of the Crimes Act 1961. That concession read:
“Pursuant to s 369 of the Crimes Act 1961, all three accused concede that between 1 April 2001 and 2 June 2001, 121 pallets of milk powder, the property of New Zealand Dairy Group, went missing from the premises of Linfox Logistics, 84 Plunket Avenue, Manukau. None of the accused admit any responsibility for the missing pallets.”
The concession was signed by counsel for the appellants, and another accused. The other accused was subsequently discharged under s 347 of the Crimes Act.
The proposed new evidence
The proposed evidence is from a forkhoist driver who started employment with Linfox in March 2001. Her job was to unload trucks. The effect of her evidence, if permitted, is that there was no checking system in place such as of the cypher unit numbers, and pallets were not counted as they came off the truck. She accepts that although each truck had documentation to say how many pallets were on board, they were never checked. Between 18 to 25 different loads were received each day. Orders were received from the Dairy Company to fill containers to be shipped to the Port of Auckland. In filling these orders, staff were unable to locate instructions and documents containing cypher and unit numbers.
Mr Kaye submitted that the proposed evidence is cogent evidence from a person in a position to know the system at Linfox very closely at the time. If trial counsel had been aware of this evidence, it is likely that the s 369 admission would not have been made. Further, if the evidence had been available at the trial, there would have been extensive cross-examination of crucial Crown witnesses who were at pains to point out the accuracy of the stock control system.
Leave to adduce new evidence
This Court may allow an appeal if, on any ground, there was a miscarriage of justice. It may under s 389(c) of the same Act receive new evidence. Normally, it will require that evidence to be fresh in the sense that it was not available at trial; and that it be credible and cogent in the sense that if given along with the other evidence in the case, the jury might reasonably have been left to return a different verdict: see R v Zachan (CA304/94, 11 August 1995).
Counsels’ submissions
Mr Kaye, for the appellants, submitted that the proposed evidence is cogent and would have materially affected the verdict of the jury.
Mr Northwood, for the Crown, submitted that the evidence now proposed was always available to the defence, indeed the proposed witness gave evidence for the Crown, at the hearing. It is not fresh evidence.
Further, the challenge to the accuracy of the stocktake and the stock handling was an obvious issue for the defence at trial. Counsel for the appellants was nevertheless satisfied that the Crown had established that a quantity of milk powder was missing. Five witnesses were called at the trial who could have addressed the issue raised in the proposed evidence. Apart from the forkhoist driver, the other four were all senior management and accounting staff at New Zealand Dairy Group and Linfox. Through these witnesses the Crown was able to establish the milk powder was missing. They gave evidence of accounting and audit procedures, and the Crown did not have to rely on witnesses who saw individual pallets go missing. Further, the duties of the proposed witness do not make her the right person to challenge the accuracy of the stocktakes. The evidence, if allowed, will therefore not be cogent and compelling.
Decision
It is not necessary for the purposes of the appeal to consider wider issues about when and under what conditions an accused can retract a concession under s 369.
The proposed evidence states there was no appropriate system in place to check the pallets coming in. The witness acknowledges that each truck that came in had documentation showing how many pallets there were on board, but she states that the pallets were never counted.
We were provided with a copy of the typical assignment note used in this case. That note provided the source of the pallets and the carrier signed as receiving the quantity of product from that source. There was a reference to the vehicle, the number of units and the weight of those units. The consignment note was also signed by the “Receiving Storeperson” in Linfox and it was accepted that the proposed witness signed some of these notes. If the proposed evidence is correct, and the pallets were not counted, the driver and the receiving storeperson obviously relied upon the consignment note.
We have some difficulty in accepting that the receiving storeperson would sign for the receipt of a specified amount of product without being reasonably satisfied that the product was on the truck. The documentary train in this case suggests that the product collected from the consigning store was delivered to Linfox and that both the truck driver and the receiving person at Linfox were prepared to confirm by signature that this had occurred. The appellants now seek to undermine the Crown case by adducing evidence of a witness who is not in a position of responsibility, and who proposes to give evidence that the number of pallets was not counted notwithstanding that she and other recipient storepersons signed consignment notes which referred specifically to the quantity and weight of product on the truck. In the circumstances we do not accept that the proposed evidence is either cogent or compelling.
This is a case where the evidence against the appellants was overwhelming. The evidence adduced on behalf of the Crown did indicate that security at Linfox was somewhat lax. However, it also established that there had been a loss of product amounting to 121 pallets. This was established after a detailed audit. Further, that audit established that the product could not have been misplaced or sent to the wrong destination.
When this evidence is coupled with evidence associating the appellants with the vehicles which entered the property on a total of six occasions, and when one appellant in particular was driving one of those vehicles with false number plates, the inferences adverse to the appellants are strong. They are strengthened by the fact that a matching number plate to one of the stolen number plates on one truck used in the robbery was discovered at the premises of Mr Murray Snr.
The events of Queen’s Birthday Weekend 2001 establish theft, which can not possibly be undermined by the proposed witness’s evidence. At the hearing she gave evidence that she was asked to work on Saturday 2 June. She was asked to get an order ready for Sulphur Point and did this on Saturday morning by placing those pallets in various positions in the warehouse. They were to be collected by a truck coming in on Tuesday. There was evidence that those pallets went missing between the time they were stacked on the Saturday, and the time she came to work on the Tuesday. 36 pallets were involved. The lax counting of incoming product can not undermine the evidence given at the trial that 36 pallets, at least, went missing over Queen’s Birthday Weekend 2001.
We do not need to determine whether the evidence in the circumstances is fresh evidence although we have doubts as to whether it is. The evidence is not cogent and compelling and leave will not be given to adduce it.
As the conviction appeal rests on the evidence being adduced it is dismissed.
Sentence appeal
The basis of the appeal against sentence is that it was manifestly excessive. There were two reasons given for this. First, the proposed evidence would cast some doubt on the amount of the products stolen, which the Judge assessed at just under $600,000.
Secondly, Mr Murray Jnr was a first offender. He was treated on an equal basis with Mr Murray Snr who had some relevant previous convictions, although they were some time ago. In the circumstances it was submitted that as this was property offending, the sentencing Judge placed too little weight on the provisions of s 8(g) of the Sentencing Act 2002, which contain a direction to impose the least restrictive outcome that was appropriate in the circumstances. It was submitted that the starting point of five years was not appropriate in the circumstances.
The Judge noted the need to take into account consistency in sentencing. He accepted the aggravating factors as being the value of the property which made it a very serious crime, and the level of planning that would necessarily be involved, including the theft of number plates which could be used to provide an element of confusion. Further, the appellants hired a large and expensive truck and trailer and he drew an inference that there was a ready and lucrative means of disposal of the property stolen. In treating the two appellants equally, he noted that he did not take into account the past record of Mr Murray Snr.
The sentence was reduced because neither appeared to have materially benefited and Mr Murray Jnr had no previous convictions. In the circumstances, if the starting point of five years was correct, we are of the view that the reduction of one year can not be criticised.
We do not accept that the security problems referred to undermine the amount of property which His Honour took into account. The evidence supported the amount and this was serious offending.
We are of the view that the sentence was not out of line with comparable sentences. In R v Weavers (CA68/93, 29 March 1993) this Court upheld a term of five years imprisonment for an offender who pleaded guilty to 29 charges of receiving and ten of false pretences. The total value of the property involved was $994,000. The starting point before the discount for the guilty plea was six and a half years. In R v Clarke (CA41/93, 16 December 1993), deer velvet valued at $473,000 was stolen in two burglaries. As the offences were burglary, there was a higher maximum penalty than is available in the present case. A sentence of five years imprisonment, while found to be comparatively severe, was upheld. Weavers was more serious offending and Clarke was probably not as serious as the offending here.
We are of the view that a sentence of four years imprisonment in the circumstances of this case is not manifestly excessive. The appeal against sentence is therefore dismissed.
Solicitors
P J Kaye for both appellants
The Crown Solicitor, Auckland
0
0
0