TUREI v POLICE [2020] NZHC 589

TUREI v POLICE [2020] NZHC 589 [20 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-547[2020] NZHC 589BETWEEN ANGELA DEBORAH TUREIAppellantAND NEW ZEALAND POLICERespondentHearing: 17 March 2020Appearances: R N Roy for AppellantC E Best and Z R Hamill for RespondentJudgment: 20 March 2020JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 20 March 2020 at 4 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, ManukauPubic Defence Service, Manukau[1] On 15 November 2019, after a Judge-alone trial, Judge Rogers found theappellant, 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 orderedher 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 herassessment of the evidence to such an extent a miscarriage of justice has occurredwithin 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, andConstable Pomare, the officer in charge. What follows is a summary of the facts asthe Judge found them to be:3[4] The time, date, place, identity and value of the phone taken are not inissue. The bald facts of what happened are not really in issue. Thecomplainant, Alicia Botha, was shopping in Number One Shoes on19 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 andapproached the defendant asking if it was hers. The defendant said that shewas always forgetting things and took the phone from the store attendant.Very shortly thereafter the store attendant was made aware that the phone hadbeen 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 wasnot the phone that she had given Ms Turei. Ms Turei then told the store workershe 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, accompaniedMs 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 Tureithen said her son might be in a gaming place nearby, or that he may have goneto Countdown to get some food. Ms Botha, a staff member from Number OneShoes 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 herhome. 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 trafficand Ms Botha lost contact with her.[6] I am told that sometime after a charge was laid against Ms Turei sheendeavoured 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 the1 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 theofficer-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 andon appeal, applied to have the charge dismissed on the basis the evidence adduced toestablish the charge was insufficient.[5] The police had laid the charge under s 219 of the Act. A charge under s 219may 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 wassatisfied the police could not succeed under s 219(1)(a) but she was satisfied there wassufficient evidence to prove the charge under s 219(1)(b). The Judge dismissed theapplication accordingly.4[6] Ms Turei elected not to call or give evidence, the Judge delivered an oraljudgment, determined the prosecution had established the elements of the offenceunder 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 withany property with intent to deprive any owner permanently ofthat property or of any interest in that property after obtainingpossession of, or control over, the property in whatevermanner.[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 nothers and thus acted dishonestly and without claim of right from the outset; thatMs Turei used or dealt with the phone by retaining it and/or putting it in her handbagand/or giving it to her son; and that Ms Turei had done one or other of these thingsintending to deprive the owner permanently.Submissions[10] Mr Roy's first submission is that the Judge erred in her assessment of theelements 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 Tureiobtained possession or control over the phone, rather than, as is required, Ms Turei'suse of or dealing with the phone.[11] Mr Roy referred me to the following passage in the judgment as bearing outhis point:5[4] In my assessment of the evidence presented by the prosecution itis quite clear that Ms Turei obtained possession or control over the phone bytaking advantage of the misapprehension of the shop worker. There is noevidence that suggests any mistake or misunderstanding on the part ofMs Turei. I am satisfied that the only reasonable conclusion is that sheobtained the phone dishonestly and without claim of right.[12] I do not accept the Judge confused the elements of the offence. The Judgeknew it was unnecessary for the prosecution to establish that Ms Turei had obtainedpossession dishonestly. The Judge said this expressly later in her decision, and shealso referred to the Court of Appeal's decision in Boese v R which makes this pointclear.6 Rather, the point the Judge was making in the passage which I have quoted5 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 herson's and thus was dishonest from the outset. Whilst it is unnecessary for theprosecution 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 toevidence, the defendant's subsequent use of or dealing with the property was dishonestand without claim of right.[13] Secondly, Mr Roy submitted there was no evidence Ms Turei realised thephone was not hers. He submitted the phone was a "standard phone", that Ms Tureiwould not have known it was not her phone and that her words "always leaving mystuff around" show a belief in a proprietary or possessory right to the phone. Mr Royalso submitted the fact that Ms Turei remained in the shop was consistent with thatbelief.[14] I do not accept this submission. There was ample evidence from which theJudge could infer Ms Turei knew the phone was neither hers nor her sons. This was asmartphone in a black or grey cover. It could not be confused with the entirelydifferent type of "push button" phone Ms Turei proffered shortly afterwards. AlsoMs Turei's subsequent statement, that she had given the phone to her son, indicatedshe realised the push button phone she had proffered was not the one Ms Paulo hadgiven her.[15] Mr Roy submitted the prosecution had not adduced evidence of dishonesty andthere was a real danger of reversing the onus of proof. I do not accept that submissionfor the reasons I have given. There was sufficient evidence for the inference the Judgedrew.[16] Mr Roy also submitted the Judge had not commented on whether or notMs Turei had intended to deprive Ms Botha permanently of her phone. With respectto Mr Roy, I do not know what other inference could be drawn from Ms Turei'sactions, including her U-turn into oncoming traffic and/or her failure to return thephone or make it available for collection.Result[17] I dismiss this appeal.Peters J