The Queen v Trevor Stephen Schmidt
[2002] NZCA 242
•21 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA237/02 |
THE QUEEN
V
TREVOR STEPHEN SCHMIDT
| Hearing: | 21 October 2002 |
| Coram: | Tipping J Williams J Baragwanath J |
| Appearances: | M J Faleauto for Appellant K Raftery for Crown |
| Judgment: | 21 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
The appellant Mr Schmidt was found guilty of theft by a jury in the District Court at Auckland. He was convicted and sentenced to 100 hours community work. He appeals against conviction on the grounds that the Judge failed, in several ways, to give proper directions to the jury.
In the early hours of the morning of 19 July 2001, the appellant found two boxes, one containing a stereo mixer and the other a Denon CD player, on a ledge outside a bar in an Auckland street. He placed these items, alleged by the Crown to be valued at over $300.00, in his car. As Mr Schmidt drove home, the police stopped him on an unrelated matter and found the items in his car. At first he claimed that the items were his. When this answer was met with some disbelief he claimed they belonged to a friend. The police constable was still not convinced and Mr Schmidt then stated he would tell the truth and that he had found the items on the ledge and could not believe his luck.
The appellant was charged with theft of property worth more than $300, pursuant to s227 Crimes Act 1961. It was the Crown’s case at trial that Mr Schmidt had stolen the goods from their true owner who was unknown. Mr Schmidt’s defence was that the goods had been abandoned or, if they had not, he honestly believed that was so. In support of this defence, Mr Schmidt relied on the fact that no property of this type had been reported missing or stolen, despite extensive enquiries having been made by the police. Furthermore, the items had not been plugged in or tested to determine whether they worked. If, as was possible, they did not function properly they could well have been abandoned.
Essentially, the appeal is based on the Judge’s failure to direct the jury properly on the elements of theft as the Crown was required to prove them. Mr Faleauto submits that it was incorrect for the Judge to state, as he did, that the Crown did not have to prove beyond reasonable doubt that the items had not been abandoned. Although this is the primary submission, Mr Faleauto also points to other errors allegedly made by the Judge. The Court itself raised further matters of concern.
We have considered the Judge’s summing-up carefully and find several material errors in it. Each error, by itself, constitutes a miscarriage of justice. Their combined effect means that the conviction cannot be upheld. We will deal with each issue in turn.
When dealing with the question of what the Crown was required to prove for the charge of theft to be established the Judge gave the following directions to the jury:
…The Crown does not have to prove that these goods were not abandoned, but where the defence of that character is raised, as it has been by Counsel for the accused. What the Crown does have to satisfy you of is that the accused did not have any honest and reasonable belief that the goods were abandoned. [Punctuation as in signed copy of summing-up.]
Later the Judge said:
Mr Faleauto, for the Defence, reminded you that the Crown has a duty to prove the case and to prove all the elements of the charge to you beyond reasonable doubt. He put it to you that the Crown has failed to prove that the property was [the word ‘not’ has been omitted] abandoned. It is not incumbent upon the Crown to prove that as a fact, but the Crown must prove to your satisfaction that the accused did not have a reasonable belief that it was abandoned.
We are of the view that the Judge was wrong when he said that there was no onus on the Crown to show that the goods were not abandoned. The appellant had raised a sufficient evidentiary foundation to put this matter in issue. This was via the cross-examination of two Crown witnesses. First, a manager of a Hi Tech and DJ department of a music shop testified that the goods were never tested to determine if they worked or not. Secondly, a police constable gave evidence that, although the appellant claimed he found the goods outside the bar, the police did not go back to the bar to check and had not received any complaints that such goods had been stolen. After the defence raised the possibility of the items being abandoned as a live issue, the onus was on the Crown to show that someone had title in the items such that the items were capable of being stolen. There is no doubt that if goods are abandoned they are not capable of being stolen: See B Robertson (ed), Adams on Criminal Law, at CA 220.18 and Ellerman’s Wilson Line Ltd v Webster [1952] 1 Lloyds Rep 179 at 180.
Compounding the above misdirection, the Judge made several references (as above) suggesting Mr Schmidt’s belief that the goods were abandoned had to be reasonable as well as honest. An honest belief suffices. Hence the suggestion that such belief had to be reasonable was a misdirection and a highly material one at that. Although the Judge did on occasions state that an honest belief in abandonment was a defence to the charge, we cannot be sure that the jury properly appreciated that such belief did not have to be reasonable as well. Viewed as a whole the summing-up was far from clear on this point.
The combination of the foregoing two points leads us to the inevitable conclusion that a miscarriage of justice has occurred. This view is strengthened when the following additional problems are considered.
At page 9 of his summing-up the Judge said:
…The Crown suggests to you that he has not come into the witness box and told you that he had that belief, he is asking you to say that the Crown has not shown that he had not got that belief, but he did not even tell the police officer that he that belief…(sic)
This passage suggests a comment by the Crown on the appellant’s decision to refrain from giving evidence. Mr Raftery assured us, and we accept what he said, that the notes of Crown counsel did not contain any such observation. But, by portraying the Crown as having made such a suggestion, the Judge endorsed what would have been a comment forbidden by s366 of the Crimes Act.
The summing-up is also inadequate by reason of the Judge’s failure to direct the jury regarding the issue of lies. In the light of the defence at trial, the jury would naturally have concluded that Mr Schmidt had lied to the police when the items were first discovered in his car. Indeed, Mr Raftery confirmed that the Crown had relied on lies in closing submissions. Thus it was a clear case for the jury to be given a lies direction in its conventional short form. The Judge failed to do so.
For the reasons given we consider that a miscarriage of justice has occurred. Accordingly, the appeal is allowed and the conviction is quashed. The appellant has already faced two trials, the first of which resulted in a hung jury, and thus we do not consider that it would be appropriate to direct a new trial. Indeed we record that the Crown very properly did not seek one.
Solicitors
Crown Solicitor, Auckland
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