MAHANGA v NEW ZEALAND POLICE [2021] NZCA 95

MAHANGA v NEW ZEALAND POLICE [2021] NZCA 95 [29 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA615/2020[2021] NZCA 95BETWEEN LEVI MAHANGAApplicantAND NEW ZEALAND POLICERespondentHearing: 16 March 2021Court: French, Ellis and Muir JJCounsel: B N Ayrey and R T Nye-Wood for ApplicantM N Zarifeh and J H Whitcombe for RespondentJudgment: 29 March 2021 at 9 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Mahanga was convicted in the District Court on one charge of receivingproperty valued at over $1000.00. He had been found guilty following a judge alonetrial before Judge M Callaghan.1 A subsequent appeal to the High Court was dismissedby Osborne J.21 Police v Mahanga [2020] NZDC 13350 [District Court judgment].2 Mahanga v Police [2020] NZHC 2532 [High Court judgment].[2] Dissatisfied with that outcome, Mr Mahanga now seeks to appeal hisconviction to this Court. Because it would be a second appeal, leave must first beobtained.3Background[3] The property in question was a moped. The complainant had purchased itsecond-hand in January 2019 for $1,300. His uncontested evidence was that when hebought the moped, it was in brand new or near brand new condition.[4] The moped was stolen from the complainant's driveway sometime between6 pm 11 October 2019 when he parked it on the driveway and 10 am on 12 October2019 when he discovered it was missing.[5] The last time the complainant had seen his moped there was, he said, nothingwrong with it — it was in perfect condition. It had only been driven for relativelyshort distances in the greater Christchurch region. There had been no mechanicalissues. It had no scratches or dents and the seating was good.[6] The complainant further testified that a brand new moped would cost between$2,500 and $2,600 and so having regard to its condition, the price he had paid for itnine months earlier was a very good bargain. He considered it was still worth $1,300at the time it was stolen.[7] On 14 October 2019, police saw Mr Mahanga riding the moped.When interviewed, he stated that he had purchased it three weeks ago for $50 from aperson whose name he would not disclose other than to say it was a friend calledJames. Mr Mahanga further stated that he had been spending the past three weeksfixing it up because it had been stripped down and had no engine. All he had obtainedwas the frame and the wheels.3 Criminal Procedure Act 2011, s 237(1).[8] When it was put to him that the moped had only been stolen two days ago,Mr Mahanga admitted he had not obtained it three weeks ago but continued tomaintain that it had been stripped down when he got it. He denied stealing it.[9] A police photo taken of the moped after its recovery showed it to be indilapidated state. It had an engine, wheels and a steering column but no seats and noother surrounds apart from the front mudguard.[10] After being contacted by police, the complainant went to retrieve his moped.He considered it was no longer usable and signed it over to a towing company.[11] At trial, Mr Mahanga did not give evidence.[12] In convicting him of receiving the moped, the District Court Judge found thatwhen the moped was stolen, its value was the value attributed to it by the complainant— that is, $1,300. The Judge based that finding on the age of the moped, its relativelylow mileage, the evidence of the cost of a new moped and the complainant's evidenceregarding its condition.4[13] Having made that finding, the Judge then went on to reject the claims made byMr Mahanga about the condition of the moped and hence its value at the time heobtained it. In particular, the Judge rejected Mr Mahanga's claims that he had receivedit in a delipidated state. The Judge also found that it was Mr Mahanga who hadchanged the status of the vehicle by removing the items so it would not beidentifiable.5[14] Finally, the Judge said he was satisfied that at the time Mr Mahanga receivedit, he knew it was stolen or dishonestly obtained or was reckless as to whether that wasthe case.6[15] Those findings were upheld on appeal by the High Court.74 District Court judgment, above n 1, at [26].5 At [31].6 At [35].7 High Court judgment, above n 2, at [20]—[28].The application for leave[16] In order to obtain leave to appeal to this Court, Mr Mahanga must satisfy us ofone of two things: either that the proposed appeal involves a matter of general or publicimportance or that a miscarriage of justice may have occurred or may occur unlessthe appeal is heard.8[17] The focus of the proposed appeal is that there was insufficient evidence toprove beyond reasonable doubt that at the time the moped was received byMr Mahanga its value exceeded $1000.[18] There are two aspects to that central contention. The first is that the Judgeshould not have relied on the complainant's evidence of value when the complainantwas not a valuation expert. That aspect is said to raise a question of general or publicimportance, namely whether non-expert opinion evidence regarding value issufficient.[19] The second aspect is that on the evidence there was a reasonable possibilitythat it was the thief who had stripped the moped before selling it to Mr Mahanga.That fact combined with the absence of expert valuation opinion along with the factthat the High Court proceeded on a mistaken basis about the date of receiving hascreated a real risk of a miscarriage of justice.Analysis[20] We acknowledge that the prosecution was required to prove beyond reasonabledoubt that the value of the moped exceeded the statutory threshold of $1,000.9 Thatis to say, value was an element of the offence.[21] We also acknowledge that the High Court Judge wrongly stated thatthe District Court Judge had found Mr Mahanga had received the moped on the same8 Criminal Procedure Act, s 237(2).9 Any lingering uncertainty that may have been created by the conflicting decisions of Marino vPolice [2017] NZCA 594, R v Koura [1996] 2 NZLR 9 (CA) and Cullen v R [2012] NZCA 413has been laid to rest by the recent decision of Hunter v R [2021] NZCA 75 at [26], n 25.day it was stolen.10 The correct position is that the District Court Judge did not makeany finding as to the precise date on which that happened. There was a two-daywindow between theft and arrest and no evidence about exactly when during thosetwo days the moped was received.11[22] However, as will become apparent on our analysis of the evidence that errorwas not material. Nor are we persuaded that the threshold for granting leave has beenmet.[23] This Court has recently held in Pure v Police that determining whether a valuethreshold has been met should not be a time consuming or expensive task.12 To suggestthat in every case, expert opinion evidence must be adduced would obviously becontrary to that approach as well as contrary to common sense. It is also not practicalor realistic to suggest that through the vehicle of this case, the Court could or shouldattempt to formulate guidelines as to when expert evidence will be required and whenit will not. The sufficiency of evidence must of necessity in every case depend onthe particular facts of the case. In short, there is no question of general importance.[24] As to the facts of this particular case, we are satisfied the Judge was entitled torely on the evidence of the complainant to support his finding about value at the timeof theft and not to make any deduction for depreciation.[25] As for the value of the moped at the time of the receiving, there was no directevidence of its condition at that time. However, there was in our view sufficientevidence for the District Court Judge to be entitled to draw the inference that he did.[26] In particular we point to the fact that two days was an implausible time framefor both the thief to have stripped down the moped, look for and find a purchaser andfor Mr Mahanga to have sourced a new motor and do the other work he claimed tohave done.10 High Court judgment, above 2, at [21].11 See District Court judgment, above n 1, at [24].12 Pure v Police [2020] NZCA 525 at [26].[27] Further, the incentive for the thief was to achieve the best price possible. He orshe did not have the same interest as Mr Mahanga did in stripping it down.[28] Added to this are the demonstrable lies Mr Mahanga told the police. And inparticular the lie that he had had the moped in his possession for three weeks. By farthe most likely explanation for telling that lie was to support a false claim aboutthe condition it had been in when he received it. In our view, that was an irresistibleinference.[29] It follows that we do not consider that there is a risk of a miscarriage of justice.[30] The application for leave to bring a second appeal is accordingly declined.Solicitors:Public Defence Service, Hamilton for ApplicantCrown Solicitor, Christchurch for Respondent