Zacka v The Queen
[2004] NZCA 237
•22 September 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA232/04
THE QUEEN
v
JASON NEVILLE ZACKA
Hearing:22 September 2004
Coram:Anderson P
Baragwanath J
Randerson JAppearances: M K Lowe for Appellant
S P France for Crown
Judgment:22 September 2004
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
[1] The appellant was convicted by a jury in the District Court at Manukau on 12 March 2004 on a charge that
…on or about 30 November 2002, at Auckland, [he] stole a Suzuki quad bike, the property of Quad 4 Kids Ltd.
On 30 March 2004 he was sentenced to six months imprisonment on the standard conditions of parole with leave to apply for home detention and the commencement of imprisonment deferred to 13 May 2004 or such earlier date as the New Zealand Parole Board decided. He was ordered to make reparation of $300. He appeals against conviction and sentence.
[2] Of the grounds of appeal against conviction all save that of lack of balance in the summing up were abandoned by Ms Lowe at the commencement of her oral argument. Because they included criticism of the Judge’s conduct of the case we deal with them briefly.
[3] The first ground of appeal is that in ruling on an application at the conclusion of the Crown case to dismiss all counts the Judge made comments in the presence of the jury that were unfairly prejudicial to the appellant and from that point on he was denied the opportunity of a fair trial. The passage relied on related to the original first count, which the Judge dismissed
[1]… the only evidence that the accused stole a Mitsubishi Delica motor vehicle with a particular registration number is that on another date some six or seven weeks later he turned up at a hire place with a different vehicle, but containing the same registration plate as the stolen Mitsubishi Delica.
[2] If that were to lead to a strong inference that it necessarily means that the accused stole the Mitsubishi Delica then the charge could survive, but I do not see how it can. It provides a high level of suspicion and it also indicates that he is involved somewhere with this stolen vehicle in some way. But it does not go as far as to provide a proof that he took the vehicle intending to deprive the owner of the vehicle permanently of it. He may have been a receiver, he may have known nothing of it. So that charge will be dismissed under s 347 of the Crimes Act.
[emphasis added]
The Crown’s response is that the ruling was in fact made in the absence of the jury.
[4] Mr France put before us the court taker’s typed log of the proceedings. It recorded that following conclusion of the Crown case Ms Lowe made submissions to the Court for 11 seconds. At 14:53:19 the jury retired. During the period of retirement the Judge delivered his s 347 decision. The jury returned at 15:41:22 after the ruling was concluded.
[5] The court taker’s note is consistent with the terms of the Judge’s oral ruling which contained at paragraph [6] the statement
…I am inclined to say that I would direct the jury that even if they are satisfied the owner was a party other than Paul Dragt, so long as they were satisfied that it was the property of another party other than the defendant they could find him guilty.
[6] The appellant now accepts that Judge Johnson did not make an elementary error inconsistent with both the court taker’s note and the implication of his judgment is that it was delivered in the absence of the jury.
[7] The second point is that there was no evidence to support the Crown’s contention that the quad bike alleged to be stolen was the property of Quads 4 Kids Ltd. The Crown called Mr Dragt who gave evidence that
We run a small Quad Hire business for children… Quad [means] four wheel motorbike, children’s four wheel motorbike.
[8] He produced a printed agreement headed
QUADS FOR KIDS LTD described as AGREEMENT TO HIRE RENTAL MOTORCYCLE
The text commences
An Agreement made on / / QUADS FOR KIDS LTD of 7 Pandora Place, Pakuranga, Auckland (herein after called the owner) of the one part…
and a person whose name is shown in handwriting as “Jason Gary Chalmers”. The operative part of the agreement records that
The Owners will let and the Hirer will take on the hire… the motorcycle.
At the foot the document is signed by Mr “Chalmers” as hirer then follows “signed by ‘P Dragt’ owner”.
[9] The defence admitted the appellant’s identity as the person who entered the agreement.
[10] Ms Lowe submitted that Mr Dragt gave no evidence as to who was the legal owner of the quad bike. We do not agree.
[11] It is true that by signing simply in his own name Mr Dragt did not employ the precision in distinguishing himself from his company that might be expected of someone with legal training. But since a document must be read as a whole, and a company can act only through natural persons, the inevitable inference is that Mr Dragt was signing on behalf of the company which was shown as the complainant in the count.
[12] In his s 347 ruling the Judge said
[3] In relation to [the present] count… it is argued that the Suzuki quad bike has been shown to be, on the evidence, the property of a limited company, and there has been no evidence that it was owned by Paul Dragt, the person particularised as the owner.
[4] Well I have just been corrected. The submission is that there is no evidence as to who owned the bikes. There is evidence that the limited company ran the hire business which lets them out, except that the agreement exhibit 1 refers to the company as the owner, and the defendant as the hire. The evidence tends to suggest that the owner is the company, and so the submission is made that the charge cannot stand.
[5] Well the essential ingredient which has to be proved is that someone else other than the defendant owns the vehicle. It is permissible for instance to allege ownership in this way “the property of persons unknown”. It would never be possible to do that if an essential ingredient of the charge was that you had to identify the actual owner. So it is a question of whether the charge fails because of a wrong particular as distinct from a lack of proof of the essential ingredients of the charge.
[6] The charge could obviously not fail, the question is can I amend the charge for the purposes of the jury after the Crown case has closed, or not. I am inclined to say that I would direct the jury that even if they are satisfied the owner was a party other than Paul Dragt, so long as they were satisfied that it was the property of another party other than the defendant they could find him guilty.
[7] I will decide on the question of whether I can amend the charge after the Crown case is closed, after I have had the assistance of counsel who are going to find for me a provision which some of them say exists authorising that.
[13] He directed the jury
[23]…the evidence does appear to be that the property was that of Quads 4 Kids Ltd but that is not a sticking point. The key is that the property must be someone else’s than the accused.
[14] The identity of the owner is not material to the element of theft although this Court would interfere if there had been reason to conclude that there had been miscarriage of justice because of some misunderstanding on the jury’s part. There is no basis for such a conclusion and the second ground also fails.
[15] A related ground is that by amending the theft count after the conclusion of the Crown case to substitute the company’s name for that of Mr Dragt the defence was disadvantaged.
[16] Section 335 of the Crimes Act provides
335 Variance and amendment
(1) If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2) If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.
…
(4) In any such case the trial or the appeal may then proceed in all respects as if the indictment or count had been originally framed as amended.
(5) If the Court is of opinion that the accused has been misled or prejudiced in his defence by any such variance, error, omission, or defective statement as aforesaid, but that the effect of his being misled or prejudiced might be removed by adjourning or postponing the trial, the Court may in its discretion make the amendment and adjourn the trial to a future day in the same sittings, or discharge the jury and postpone the trial to the next sittings of the Court, on such terms as it thinks just.
…
[17] The leading discussion of the provision is in R v Bovey [1964] NZLR 865. It has been observed that
The longer the interval between arraignment and amendment, the more likely it is injustice will be caused and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby.
R v Johal [1973] QB 475 at 481 cited by McCarthy P in R v Johnston [1974] 2 NZLR 660 at 664.
[18] The appellant now accepts there was no unfair prejudice. The amendment was made to bring the count into conformity with the documentary exhibit that had been produced at the depositions hearing.
[19] The final ground is that the summing up was not balanced. The judge’s task in summing up on the facts is to
…review the substantial parts of the evidence, and give the jury the theory of the [Crown and defence cases] so that they may appreciate the value and effect of th[e] evidence, and how the law is to be applied to the facts as they find them.
Azoulay v R [1952] 2 SCR 495, 497-8 cited by Adams at Ch 5.24.01(6).
[20] We reproduce part of the summing up the Judge and have emphasised the passage of which the appellant complains
[38] So the vehicle goes off and does not come back. When it is recovered a number of things are noticed although there is some dispute about some of them. One is that the identity plate is broken. The accused said he had nothing to do with that. He may have said that it was broken when he got it but at least he had nothing to do with that. Mr Dragt said it was secure. He did not actually say that he looked at it the moment of hiring it but he keeps the vehicles in identifiable condition. The second was that there was some sign writing missing and the third was that the wheels had been painted. This is a curious thing because the accused says it is his boy who did that. I suppose the curious things is this, that if it were the boy he has chosen a paint which seems to be similar to the way in which these vehicles are sold to the public at large in terms of its colour.
[39] As I say be fair minded about this. Decide what you think is safe about that fact situation to accept. It is possible, isn’t it, to draw a conclusion that that is a sign of dishonesty because the identity of the vehicle, quite a striking factor about the identity – the red wheels – has been covered up. On the other hand if there is a reasonable possibility that it was the boy who did it then that is not down to Mr Zacka is it? Then there is the issue of what you make of the photographs of a bit of paint straying on to the wheels or the coverage of the paint on the wheels. There is an item which is a bit unusual and you are going to have to grapple with that and see what it tells you.
[40] When the vehicle came back after nine months after the Police found it it had this paint change, it had the ID tag in part broken off and it had some sign writing removed. I guess if you were a hirer and had not been able to find your vehicle and you had reported it to the Police three days later or made a statement a few days later and reported it to the Police reasonably promptly – I think it was the next day – you would read all of that as being signs, just confirmation that your vehicle had been stolen. That is what you are being asked to do and you have to decide whether you accept that or not.
[41] The accused on the other hand says well that’s fine but there are explanations and there are events that occurred within that period that I had it which explain it and explain it in a way which removes from me any dishonest intention. That is that the arrangements for return of the vehicle were imperfect. I telephoned the number and got a woman and I telephoned up to 15 times trying to find a way to return it. Eventually I decided when I heard from her that I would lose my deposit that that was not fair or right and I would hold on to the vehicle. You have got to decide whether you accept that, if that is reasonably possible, and if that also amounts to evidence that you accept that makes it reasonably possible he was not being dishonest, then you would have to acquit him.
[42] Now let’s think about that. Of course, the owner has a right to have his vehicle back and the hirer does not have any right to keep it beyond the hire period. If there is a dispute about the payments within the contract then it has to be dealt with in a different kind of way. As a matter of law the retaining of it is capable of being part of the acts of conversion. On the other hand to fix him with this crime you have to be satisfied that there is the added factor that he was being dishonest when he did that not just ignorant or something less than dishonest.
[43] That is really the key to it. The Crown would also say well no steps were taken to fix this dispute or to engage in this dispute and the vehicle had to be found six or seven months later by the Police. Isn’t that a sign, they might say to you, that he had decided to keep it. I have just run over some of the key things and you have heard Counsel express it in the way that they wanted to put it to you and you should give the weight that you feel appropriate.
[21] The passage complained of in para [38] properly expresses an important element of the Crown case. The Judge balanced it with the defendant’s response contained in paras [39], [41] and the passage we have underlined in para [42].
We are satisfied that the Judge put the defence contention fairly.
[22] A further aspect of the challenge to the summing-up is a complaint that the Judge did not direct the jury of the evidence that Mr Dragt ran the hire business with his wife or repeat the defence submission that there was no evidence to contradict the appellant’s contention that he had made genuine efforts to contact the hiring company and had spoken to a lady and explained the difficulties regarding return of the bike.
[23] But the major point was expressed clearly in para [41] of the summing-up; the jury must have been very well aware of the defence case as to who the woman was. We dismiss the appeal against conviction.
[24] The appellant also appeals against sentence. Ms Lowe challenged only the length of the prison sentence, which she submitted should have been of no longer than three months.
[25] On 18 September 1995 the appellant was admitted to non‑residential periodic detention for theft; on 18 March 1996 he was again admitted to non‑residential periodic detention for unlawfully taking a motor car; on 31 March 1999 he was fined for theft from a dwelling and on 27 July 1999 he was imprisoned for nine months and committed to supervision for a period of a year in relation to two charges of theft and one of receiving. With that list a deterrent sentence was appropriate and a term of six months was well within range.
[26] The appeal against sentence is also dismissed.
Solicitors:
Crown Law Office, Wellington
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