The Queen v MA

[2009] NZCA 377

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/2009
[2009] NZCA 377

THE QUEEN

v

ZHEN JIE MA

Hearing:13 August 2009

Court:Baragwanath, Randerson and Panckhurst JJ

Counsel:A D Banbrook for Appellant

F E Guy Kidd for Crown

Judgment:26 August 2009 at 10am

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

INTRODUCTION

[1]       Following a jury trial in the District Court at Auckland the appellant was convicted of two offences of receiving.  He was sentenced to community work and ordered to pay reparation.  The appeal is against conviction.

[2]       In the end result the sole ground of appeal concerned whether the trial Judge erred in summing up because he did not direct the jury that “dishonesty” was a necessary element of the offences and, therefore, a matter to be established by the Crown beyond reasonable doubt.

The offending

[3]       The charges of receiving related to Nissan and Mazda motor vehicles alleged to have been received by the appellant in July 2007.  He operated a scrap metal business.  A mainstay of the business was the purchase of old vehicles for scrap.

[4]       At trial it was common ground that the appellant had purchased the Nissan vehicle from a named person for $120.  The only question in dispute was whether, at the time of the purchase, the appellant knew that the car had been dishonestly obtained or that he acted recklessly in that regard.

[5]       In relation to the Mazda, however, the defence was two-fold.  The appellant maintained that he was unaware of the vehicle being in his yard, until the police drew attention to it.  Accordingly in this instance there were two issues which required determination by the jury, being whether the accused was in possession of the Mazda and, if so, whether his receipt of it was with the requisite guilty knowledge.

Was a dishonesty direction required?

[6]       It is convenient to set out part of the written questionnaire which Judge Gittos gave to the jury.  We shall remove reference to count 1 (since the contents of the questionnaire as it related to count 2 are sufficiently illustrative for present purposes):

Not in dispute:

A.Both the Nissan car and the Mazda car were stolen from their true owners and were recovered from the accused’s scrap yard by the Police.

B.The Nissan car was in the possession of the accused having been purchased by him.

COUNT 2 – THE MAZDA CAR

1.Was the accused in possession of the car, i.e.: did he know it was in his yard?

If the answer to 1 is “no” (not sure) find the accused not guilty on count 2.

If the answer is “yes” go to question 2.

2.Are you sure that at the time the accused took possession of the Mazda car the accused either:

(a)Knew that it had been stolen or dishonestly obtained; or

(b)Was aware of the risk or likelihood that the car had been stolen or dishonestly obtained and took possession of it in reckless disregard of that risk.

If your answer to either (a) or (b) is “yes” find the accused guilty.

If your answer to both (a) and (b) is “no” (not sure) find the accused not guilty.

[7]       As can be seen the Judge directed the jury of the need to find that the accused knew at the time of receipt each car was dishonestly obtained or that, aware of this likelihood, proceeded with reckless disregard of the risk.  In the questionnaire there was no other reference to dishonest intent.

[8]       Mr Banbrook submitted that the Judge’s directions were inadequate.  In brief, he argued that receiving is an offence of dishonesty and that this must be explained to the jury and, importantly, this requirement should have featured in the questionnaire.

[9]       We disagree.  Receiving is relevantly defined in the Crimes Act 1961 as follows:

246Receiving

(1)Every one is guilty of receiving who receives any property stolen or obtained by any other crime, 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.

From this definition it follows that the mental element of receiving (at least in the run of cases) is guilty knowledge as defined in s 246(1).  The offender must know when he takes possession of the relevant item that it was either stolen property or property otherwise dishonestly obtained.  Almost invariably this will be the only mental element.  And the directions to the jury need only focus upon the twin elements of receipt and guilty knowledge. 

[10]     Indeed, we regard the questionnaire prepared by the Judge in this case as an admirable example of the directions which are ordinarily required.  The Judge succinctly isolated the issues in dispute, and reduced each issue (in relation to count 2) to a question which accurately captured the matter for the jury’s determination, including reference to the onus and burden of proof as well.  In our view no more was required.

[11]     Occasionally, there will be cases where something more is required of a trial Judge.  These will be instances where an accused received property, knew that it was stolen or was reckless of that risk, but did not intend to appropriate the property to his own use.  Put another way, the accused’s purpose was altruistic.  He may, for example, receive the property intending to restore it to the rightful owner or even so that he may hand it to the police. 

[12]     Where, unusually, a defence of this kind is raised there is effectively an overarching additional mental element to the offence.  It will be necessary for the Crown to negative the accused’s explanation.  It must satisfy the jury beyond reasonable doubt that the altruistic explanation (whatever it may be) is untrue. 

[13]     All of this was explained by the Court in R v Crooks [1981] 2 NZLR 53 (CA). Most of the discussion in the judgment is devoted to an explanation of the concept of wilful blindness (a discussion now to be read in light of the amendment of s 246(1) to include reference to recklessness). But at 62 Mahon J, in delivering the judgment of the Court, said this:

In our opinion the crime of receiving stolen goods in terms of s 258 of the Crimes Act 1961 involves as a necessary ingredient, proof that the goods were dishonestly received.  The receiver must have the guilty intention of appropriating such goods for the benefit of himself or of some other person.  Such a question will seldom be in issue, and no direction on the point will be required unless some evidentiary foundation is laid for suggesting that the person charged may have received the stolen property with lawful or honest intent. 

(emphasis added)

[14]     The present is not a case where the appellant acknowledged the receipt of stolen property found in his possession, but advanced an overarching explanation based on lawful or honest purpose.  Put another way, there was no evidentiary foundation laid which required Judge Gittos to direct the jury of the need for a dishonest intent, other than the dishonesty which is implicit in taking possession of items knowing they are stolen or being reckless as to that circumstance.

[15]     It follows that the Judge’s directions were entirely adequate. 

Result

[16]     For these reasons the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington