MAHANGA v NEW ZEALAND POLICE [2020] NZHC 2532

MAHANGA v NEW ZEALAND POLICE [2020] NZHC 2532 [28 September 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-96[2020] NZHC 2532BETWEEN LEVI MAHANGAAppellantAND NEW ZEALAND POLICERespondentHearing: 17 September 2020Appearances: B P A Shamy and M Bruce for AppellantS J Mallett for RespondentJudgment: 28 September 2020JUDGMENT OF OSBORNE J(appeal against conviction)This judgment was delivered by me on 28 September 2020 at 3.45 pmRegistrar/Deputy RegistrarDate:Introduction[1] Levi Mahanga was tried and convicted on a charge of receiving a stolen mopedvalued at $1,300 in Linwood on 12 October 2019 from persons unknown under s 246Crimes Act 1961 (the Act).1 Judge Mark Callaghan sentenced Mr Mahanga to 120hours' community work and ordered reparation.2[2] Mr Mahanga appeals his conviction on the basis that there was no evidencebefore the Judge to support an inference drawn that the moped was worth $1,300 at1 Police v Mahanga [2020] NZDC 13350 [Conviction judgment].2 Police v Mahanga [2020] NZDC 13352.the time it was received. It is said that the Judge was thereby led into error in hisassessment of the evidence to such an extent that a miscarriage of justice occurred.3[3] The significance of the value of over $1,000 is that under s 247(a) of the Act,the offence is subject to up to seven years' imprisonment, as contrasted with a termnot exceeding three months if the value is less than $500.Background[4] In the early hours of 12 October 2019 a 2017 TGB Tapo 50 cc moped wasstolen from outside a residential property in Addington by persons unknown. On themorning of 14 October, police observed Mr Mahanga riding the moped in Linwood.He was signalled to stop. He accelerated away and attempted to evade police, drivingthrough a cemetery, along footpaths and through a mall carpark, at times travelling atspeeds of up to 80 km/h, before being apprehended at Eastgate Mall.Evidence[5] At trial the complainant, the owner of the moped, said he purchased it inJanuary 2019 for $1,300. He said he thought that was a very good bargain becausewhen new they were worth between $2,500 and $2,600. Since it had travelled onlyabout 4,000 km he believed it was still worth $1,300 when it was parked outside hishouse on the evening of 11 October 2019. He said at the time it was in perfectcondition, free from scratches, dents and marks, and the seating was perfectly fine.The complainant had reported on 12 October to the police that the moped was stolen.[6] He was subsequently called by police informing him that his moped had beenfound and was at a towing yard. When he arrived at the towing yard he found themoped had been completely stripped down. The seat and panelling had been removed.He was told by the towing yard that the moped now was not road-legal and it had novalue. If he signed over ownership to the towing yard, he would not be charged towingfees. He did that as he had no ability to fix it and he understood it was not in a saleablestate.3 Criminal Procedure Act 2011, s 232(2)(b).[7] Mr Mahanga gave no evidence at trial. However, he had given a policeinterview on the day of his arrest to Constable Marriott. He was asked where he gotthe moped from. He told police he had "got it from this bro". He initially refused toname this person. When he was confronted with the allegation that the moped wasstolen and that he perhaps wasn't telling Constable Marriott the truth, he named theperson as "James" but refused to give James's last name. He said he got the mopedthree weeks before and that he had been fixing it up. According to him, it had nomotor in it. It was just "a frame and wheels" when he got it. He said he paid $50 forit. He maintained that was a fair price for it because the transaction was "on the street"and he had to fix it up. When told of the timing of the theft of the moped (on 12October), he changed the date of his "purchase" to the 12th.District Court decision[8] Judge Callaghan viewed the recordings of Mr Mahanga's interview. He foundMr Mahanga's account in his interview was less than satisfactory. His Honouridentified Mr Mahanga's inability to give specifics as to his supposed purchase of themoped for $50 from "James". He rejected both of Mr Mahanga's explanations – as tothe "purchase" (three weeks earlier) and as to the "purchase" (two days earlier). HisHonour rejected Mr Mahanga's explanation that he received the moped in adilapidated state. The Judge found that Mr Mahanga had removed the missing parts.[9] Judge Callaghan found the moped was clearly stolen or dishonestly obtained,and said this was clear in Mr Mahanga's own evidence that he paid only $50 for it,accepting such a transaction occurred.[10] His Honour found, as a result of the supposed purchase of the moped for only$50, Mr Mahanga knew it was stolen or dishonestly obtained, or was at least recklessas to whether or not it was stolen or so obtained by failing to undertake any enquiries.The evidence found to justify this conclusion was first, Mr Mahanga's lie that he hadbeen in possession for three weeks, secondly that when he was seen riding the mopedby police he attempted to evade police for a significant period of time. The Judgeobserved that, if Mr Mahanga had legitimately obtained the moped for $50, he wouldnot have evaded police and he would have been able to recount that transaction topolice in his interview. The Judge considered this evidence circumstantial evidencewhich entitled him to draw the inference that Mr Mahanga knew or was reckless as tothe stealing or dishonest acquisition of the moped.[11] The Judge found that at the time the moped went missing it was worth $1,300,taking into account its relatively low mileage (and being only driven relatively shortdistances in the greater Christchurch area), that it was only two years old, that its"new" price would be in the region of $2,500 and that it was in perfect mechanical andcosmetic condition. He rejected Mr Mahanga's account that he took possession of itin an already dilapidated state. He found the removal of the panels and seating was toprevent identification of it as stolen property.[12] Accordingly, the Judge found the charge proved beyond reasonable doubt.Principles on appeal[13] Section 232(2)(b) of the Criminal Procedure Act 2011 provides that the HighCourt may only allow an appeal against conviction if satisfied that the trial judge"erred in his or her assessment of the evidence to such an extent that a miscarriage ofjustice has occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.4 In Sena v Police the Supreme Court clarified the properapproach under s 232(2)(b) is for the appeal court to form its own view of the factsand determine the appeal accordingly.5 It follows that if an appeal court comes to adifferent view than the trial judge on the evidence, the trial judge has erred and therehas been a miscarriage of justice, thus the appeal must be allowed.6[14] If the Court determines the appeal against conviction should be allowed, it hasthe power (amongst other powers) under s 234 of the Criminal Procedure Act to directthat a judgment of a conviction be entered for a different offence. This power may beexercised if the Court satisfied the defendant could have been found guilty at their trial4 Section 232(4).5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [25].6 Sena, above n 5, at [38].for that different offence.7 In the present case, that opens the possibility of thesubstitution of a different offence by reference to the applicable maximum penalty foreach range of value for the receipt of stolen or dishonestly obtained property between:$500 or less;8 in excess of $500 but not in excess of $1,000;9 and in excess of $1,000.10Where that power of substitution is exercised, the appeal court may impose a sentencefor the substituted conviction or remit the proceeding to the sentencing court to imposesentence.11SubmissionsAppellant's submissions[15] Mr Shamy for Mr Mahanga submits that for a finding of guilt the Police wererequired to prove the value of the property as an element of the charge.12 Mr Shamysubmits the evidence at trial did not establish the state (and thus value) of the mopedat the time Mr Mahanga received it. The evidence at trial came from the complainant,the arresting and interviewing police officer, and another police officer who witnessedMr Mahanga's driving of the moped and apprehension, and who took a photo of themoped on the tow truck at the scene.[16] Mr Shamy submits there were no proved facts that allowed for the drawing ofan inference as to the condition of the moped when it was received. He submits theJudge's finding that Mr Mahanga stripped the moped after receiving it amounts to thekind of speculation that sits outside of permissible inference, as denounced by LordWright in Caswell v Powell Duffryn Associated Collieries Ltd.13[17] Consequently, Mr Shamy submits that it was not open to the Judge to findproved beyond reasonable doubt that the value of the moped at the time of receipt wasin excess of $1,000. He submits that the conviction should be quashed. If the Courtadopts that approach, Mr Shamy submits that, while it would be open to the Court to7 Criminal Procedure Act, s 234(2).8 Crimes Act 1961, s 247(c).9 Crimes Act, s 247(b).10 Crimes Act, s 247(a).11 Criminal Procedure Act, s 234(5).12 Citing Nathan v Police [2019] NZHC 2683 at [9].13 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 169–170.enter a substituted conviction for the different offence of receiving property of a valuenot more than $500,14 this reduced value at the time of receipt would cause the Courtto reconsider whether Mr Mahanga in fact acted with the requisite level of recklessnessrequired for proof of reckless receipt.Respondent's submissions[18] Mr Mallett for the Police submits the doctrine of recent possession is availablein this case. On that basis, the Judge was entitled to reject the inference posited by thedefence at trial and on appeal that the moped was already stripped down when it wasreceived, because it had only been a matter of two to three days since the theft of themoped from the complainant. Mr Mallett says that narrow window provided very littleopportunity for the thief to strip the vehicle down, and arrange and facilitate a sale toMr Mahanga. He says the Judge was entitled to accept as proven the more plausibleexplanation that Mr Mahanga had received the moped intact and had stripped it downhimself.[19] In the alternative, Mr Mallett submits that, if the Court allows the appeal, itshould enter a conviction on a substituted offence of receiving property of a value notin excess of $500.15 He notes that in Nathan v Police Thomas J found judicial noticecould be taken that "[a] vehicle was worth at least something, even as scrap metal",dicta which Mr Mallett says can be applied to a moped.16Analysis[20] In its case before Judge Callaghan the Police were required to prove beyondreasonable doubt that the moped exceeded $1,000 in value at the time it wasreceived.17 That said, it is not necessary that an exact value be found proved by thetrial judge in a case of receiving.18 There was evidence before Judge Callaghan thatwhen the moped was stolen in near-perfect condition and a proper basis to establishing14 Criminal Procedure Act, s 234.15 Criminal Procedure Act, s 234.16 Nathan, above n 12, at [12].17 Crimes Act, ss 246 and 247(a); see Nathan, above n 12, at [9], citing R v Koura [1996] 2 NZLR 9(CA); R v Heather CA198/01, 27 August 2001; and Cullen v R [2012] NZCA 413 at [17].18 Nathan, above n 12, at [9], citing Koura, above n 17; Heather, above n 17; and Cullen, above n17, at [17].that it was worth in excess of $1,000 (the Judge found $1,300). The essential issue fordetermination in this appeal, is whether the moped was in its near-perfect conditionwhen Mr Mahanga came into possession of it on 12 October 2019 or whether it hadalready been stripped down.[21] In assessing the evidence, it is important to focus first on the time at which MrMahanga came into possession of the moped. The Judge's finding was that he hadcome into possession of the moped on 12 October 2019 (the day on which it was stolenin the early hours).[22] That finding, beyond reasonable doubt, was clearly open. His Honour hadnecessarily rejected Mr Mahanga's first explanation, as to purchasing the moped threeweeks earlier. The evidence then before his Honour, through Mr Mahanga's ownstatement once he was challenged with the fact that the moped had been stolen onSaturday, 12 October 2019, was to accept that he had not purchased it three weeksearlier. He then maintained that he had purchased the moped, but given the date of thetheft, it must have been two days earlier, on 12 October 2019.[23] The theory of Mr Mahanga's case is that in the two days between the theft andMr Mahanga being arrested while riding the moped, someone else may have obtainedthe moped and stripped it down before passing it on to Mr Mahanga. In short, his caseis that there was a realistic opportunity for that to have happened.[24] There was, however, no evidence before the Judge to indicate any lengthyperiod in which there would have arisen the opportunity to strip the moped. While theJudge on the evidence had to reject Mr Mahanga's statement as to acquiring the mopedthree weeks earlier, there was no evidence to contradict Mr Mahanga's indication thathe had acquired the moped two days earlier (on the Saturday it was stolen).[25] For the Police, Mr Mallett referred to the doctrine of recent possession. Herecognised that the doctrine is not a rule of substantive criminal law but rather a ruleallowing proof of theft or receiving by circumstantial evidence.19 He also recognised19 Simon France (ed) Adams on Criminal Law – Offences and Defences (online ed, ThomsonReuters) at [CA219.09(1)].that the doctrine has its application in support of an inference where a person is foundin possession of stolen property reasonably soon after a theft. Mr Mallett submittedthat the doctrine of recent possession supports, on an analogous basis, JudgeCallaghan's finding in this case. In Richardson v Police, McGechan J noted that whilethe meaning of "recent" depends on the nature of the property in the circumstances, itcould be observed:20The allowable interval between time of theft and time of proven possession isshorter in the case of common place articles, or articles that can pass readilyfrom hand to hand, than in the case of rarer or less portable articles.[26] The logic behind the doctrine of recent possession can be applied by analogywhen determining the state in which the moped was when Mr Mahanga received it.The moped is not by its nature in the category of a "hand to hand" item. It is lessportable than many stolen items. The opportunity for intermediate alteration is far lesswith such an item.[27] Clearly, there was a high degree of recency in this case. The inference drawnby Judge Callaghan was legitimate and not mere speculation. Any doubt that couldremain would not be a reasonable doubt.[28] I find that the Judge did not err in his assessment of the evidence to such anextent that a miscarriage of justice has occurred.Result[29] I dismiss the appeal.Osborne JSolicitors:Public Defence Service, Christchurch for AppellantCrown Solicitor, Christchurch for Respondent20 Richardson v Police HC Palmerston NorthAP 258/88, 22 November 1988 at 5.