Turei v Police
[2020] NZHC 589
•20 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-547
[2020] NZHC 589
BETWEEN ANGELA DEBORAH TUREI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 March 2020 Appearances:
R N Roy for Appellant
C E Best and Z R Hamill for Respondent
Judgment:
20 March 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 20 March 2020 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors:Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Pubic Defence Service, Manukau
TUREI v POLICE [2020] NZHC 589 [20 March 2020]
[1] On 15 November 2019, after a Judge-alone trial, Judge Rogers found the appellant, Ms Turei, guilty of one charge of theft under s 219(1)(b) Crimes Act 1961 (“the Act”).1 The Judge sentenced Ms Turei to 60 hours’ community work and ordered her to pay reparation to the complainant, Ms Botha, of $406.97.2
[2] Ms Turei appeals against conviction on the ground the Judge erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred within the definition of s 232(4) Criminal Procedure Act 2011.
Background
[3] The evidence at trial was given by Ms Botha, Ms Paulo, a shop assistant, and Constable Pomare, the officer in charge. What follows is a summary of the facts as the Judge found them to be:3
[4] The time, date, place, identity and value of the phone taken are not in issue. The bald facts of what happened are not really in issue. The complainant, Alicia Botha, was shopping in Number One Shoes on 19 February 2019. She left her phone, the Samsung Galaxy S7 in question, on the counter. In her absence a member of staff picked up the phone and approached the defendant asking if it was hers. The defendant said that she was always forgetting things and took the phone from the store attendant. Very shortly thereafter the store attendant was made aware that the phone had been given to the wrong person. Ms Turei was still in the store. She [was] approached again by staff members. She initially proffered a different phone, not a Smart phone, but a push button phone. The store worker said that was not the phone that she had given Ms Turei. Ms Turei then told the store worker she must have given it to her son and that he was in her car outside.
[5] People from the store and the complainant, Ms Botha, accompanied Ms Turei outside to her car. Her son was not there nor was the phone. Ms Turei declined a request to check inside her car for the phone. Ms Turei then said her son might be in a gaming place nearby, or that he may have gone to Countdown to get some food. Ms Botha, a staff member from Number One Shoes and Ms Turei all went to the Countdown but could not locate her son. Ms Turei then said perhaps he had gone home, and they should follow her home. Ms Botha and a staff member got in one car, Ms Turei in another. Shortly after Ms Botha began following Ms Turei. She did a U-turn in traffic and Ms Botha lost contact with her.
[6] I am told that sometime after a charge was laid against Ms Turei she endeavoured to return a phone to the police. That was not Ms Botha’s phone. There is a suggestion that Ms Turei endeavoured to return other phones to the
1 Police v Turei [2019] NZDC 26378.
2 Police v Turei [2019] NZDC 26380.
3 Police v Turei [2019] NZDC 26377.
police, but there is no evidence of that at this stage of proceedings as the officer-in-charge was not aware of the details.
District Court judgment
[4] At the end of the prosecution case, Mr Roy, counsel for Ms Turei at trial and on appeal, applied to have the charge dismissed on the basis the evidence adduced to establish the charge was insufficient.
[5] The police had laid the charge under s 219 of the Act. A charge under s 219 may be proved in one of two ways — theft by “taking” under s 219(1)(a) or theft by “using or dealing” under s 219(1)(b). For reasons I need not address, the Judge was satisfied the police could not succeed under s 219(1)(a) but she was satisfied there was sufficient evidence to prove the charge under s 219(1)(b). The Judge dismissed the application accordingly.4
[6] Ms Turei elected not to call or give evidence, the Judge delivered an oral judgment, determined the prosecution had established the elements of the offence under s 219(1)(b) beyond reasonable doubt, found Ms Turei guilty and convicted her.
Discussion
[7]Section 219(1)(b) of the Act provides:
219 Theft or stealing
(1) Theft or stealing is the act of,—
…
(b)dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.
[8] Accordingly to succeed, it was necessary for the prosecution to establish that, having obtained possession or control of the phone, Ms Turei:
4 Police v Turei, above n 3.
(a)dishonestly and without claim of right;
(b)used or dealt with the phone; and
(c)with intent to deprive the owner permanently of the phone etc.
[9] The Judge was satisfied Ms Turei received the phone knowing that it was not hers and thus acted dishonestly and without claim of right from the outset; that Ms Turei used or dealt with the phone by retaining it and/or putting it in her handbag and/or giving it to her son; and that Ms Turei had done one or other of these things intending to deprive the owner permanently.
Submissions
[10] Mr Roy’s first submission is that the Judge erred in her assessment of the elements of the offence. He submits the Judge proceeded on the basis the element of “dishonestly and without claim of right” applied to the manner in which Ms Turei obtained possession or control over the phone, rather than, as is required, Ms Turei’s use of or dealing with the phone.
[11] Mr Roy referred me to the following passage in the judgment as bearing out his point:5
[4] … In my assessment of the evidence presented by the prosecution it is quite clear that Ms Turei obtained possession or control over the phone by taking advantage of the misapprehension of the shop worker. There is no evidence that suggests any mistake or misunderstanding on the part of Ms Turei. I am satisfied that the only reasonable conclusion is that she obtained the phone dishonestly and without claim of right.
[12] I do not accept the Judge confused the elements of the offence. The Judge knew it was unnecessary for the prosecution to establish that Ms Turei had obtained possession dishonestly. The Judge said this expressly later in her decision, and she also referred to the Court of Appeal’s decision in Boese v R which makes this point clear.6 Rather, the point the Judge was making in the passage which I have quoted
5 Police v Turei, above n 1.
6 Boese v R [2014] NZCA 144, 3 NZLR 16 at [26].
was that she was satisfied Ms Turei received the phone knowing it was not hers or her son’s and thus was dishonest from the outset. Whilst it is unnecessary for the prosecution to establish the defendant obtained possession or control dishonestly, plainly it is relevant if that is what has occurred because it evidences, or is likely to evidence, the defendant’s subsequent use of or dealing with the property was dishonest and without claim of right.
[13] Secondly, Mr Roy submitted there was no evidence Ms Turei realised the phone was not hers. He submitted the phone was a “standard phone”, that Ms Turei would not have known it was not her phone and that her words “always leaving my stuff around” show a belief in a proprietary or possessory right to the phone. Mr Roy also submitted the fact that Ms Turei remained in the shop was consistent with that belief.
[14] I do not accept this submission. There was ample evidence from which the Judge could infer Ms Turei knew the phone was neither hers nor her sons. This was a smartphone in a black or grey cover. It could not be confused with the entirely different type of “push button” phone Ms Turei proffered shortly afterwards. Also Ms Turei’s subsequent statement, that she had given the phone to her son, indicated she realised the push button phone she had proffered was not the one Ms Paulo had given her.
[15] Mr Roy submitted the prosecution had not adduced evidence of dishonesty and there was a real danger of reversing the onus of proof. I do not accept that submission for the reasons I have given. There was sufficient evidence for the inference the Judge drew.
[16] Mr Roy also submitted the Judge had not commented on whether or not Ms Turei had intended to deprive Ms Botha permanently of her phone. With respect to Mr Roy, I do not know what other inference could be drawn from Ms Turei’s actions, including her U-turn into oncoming traffic and/or her failure to return the phone or make it available for collection.
Result
[17]I dismiss this appeal.
Peters J
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