BLACKMORE v R [2022] NZHC 2617

BLACKMORE v R [2022] NZHC 2617 [11 October 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2022-441-000015[2022] NZHC 2617BETWEEN NGAWAI TE RANGIMARIABLACKMOREAppellantAND THE KINGRespondentHearing: 20 September 2022Appearances: P J Jensen for AppellantL M Marshall for RespondentJudgment: 11 October 2022JUDGMENT OF GRICE J(Conviction appeal)Introduction[1] On 27 June 2022, following a Judge-alone trial in the District Court at Napier,Ms Ngawai Blackmore (the appellant) was found guilty and convicted of one chargeof receiving a gold charm bracelet valued in excess of $1,000.1[2] The appellant appeals against that conviction on one ground, namely that theJudge was plainly wrong. The respondent opposes the appeal.1 Police v Blackmore [2022] NZDC 11803 [the decision]; Crimes Act 1961, ss 246 and 247(a) —maximum penalty seven years' imprisonment.Background[3] The appellant faced trial on three charges of receiving stolen property, namely:1) a gold and ruby ring with a new replacement value of $2,000;2) a child car seat and gold ring valued at over $1,000; and3) a gold charm bracelet valued at $4,000.[4] In the District Court, Judge Matenga found the appellant not guilty of the firsttwo charges but guilty of the third. It is only the third charge which is the subject ofthe present appeal.[5] The gold charm bracelet had been stolen between 2 February 2021 and3 February 2021. The appellant took it to the Napier Antique & Jewellery Centre (theshop) to make an enquiry as to its value on 3 February 2021. The owner and managerof the shop (the shop owner) gave evidence that, as the Judge put it, "alarm bells wentoff for her as to whether or not the charm bracelet was stolen property" because theappellant "did not seem to know much about the bracelet."2[6] The Judge set out what happened after the appellant left the store as follows:[24] [The shop owner] then checked back on her records. She had beengiven the [appellant's] name and she had recognised the [appellant] as beingsomeone she'd had dealings with before. Then on checking her records [theshop owner] saw that a previous item, a gold and ruby ring, had been reportedstolen. [The shop owner] then followed the [appellant] out of the shop andcalled her by name. The [appellant] and [the shop owner] then had a furtherdiscussion. [The shop owner] said to the [appellant] that the bracelet maybelong to someone else and that she would get it checked out and was preparedto purchase the bracelet from the [appellant] if the bracelet was bona fides.The [appellant] then gave the bracelet to [the shop owner] who then took itwith her back to the store. Subsequent enquiries did in fact show that thebracelet was indeed stolen property from a burglary.2 The decision, above n 1, at [23].District Court decision[7] In relation to all the charges, there was no issue that, first, the property inquestion in respect of each charge was stolen, secondly, that the appellant hadpossession or control of the property in question, and thirdly, that the property had therespective values alleged.3 The Judge considered the real issue in each case waswhether at the time the property was received, the appellant knew that the propertywas stolen or was reckless as to whether it was stolen.4[8] In respect of the first two charges, the Judge found that there was insufficientevidence to suggest that the defendant either knew the property in question had beenstolen or was reckless as to whether it had been stolen.5 Those charges wereaccordingly dismissed.6[9] On the third charge, relating to the gold bracelet, the Judge found the elementsof the charge were proved beyond reasonable doubt and the appellant was guilty ofthat charge.7 The Judge was of the view that the appellant's actions indicated that sheeither knew that the property was stolen or was deliberately reckless as to whether ornot the bracelet was stolen.8[10] The Judge explained his reasoning in the following way:[25] The issue here for me today is whether or not at the time that the[appellant] exercised control, that is at the point where she gave up the braceletto [the shop owner], whether or not she knew or was reckless in relation towhether or not the item was dishonestly obtained. Did the [appellant]recognise that there was a real possibility that the property was stolen and thathaving regard to that possibility were the [appellant]'s actions unreasonable?[26] I have formed the view that this exchange between the [appellant] and[the shop owner] shows that the [appellant] knew that the property was stolen.She, in my view, gave it up too easily. If it was indeed hers and it was her firmbelief that it was hers then it is more likely that the [appellant] would not havegiven up the bracelet but would have asserted her right of ownership. The[appellant] was even thankful that [the shop owner] was dealing with it in sucha nice way. The [appellant]'s actions, in my view, indicate that she knew either3 At [8]–[9].4 At [10].5 At [16] and [20]–[21].6 At [17] and [21].7 At [27].8 At [26].that the property was stolen or was deliberate reckless [sic] as to whether ornot the bracelet was stolen.[11] The Judge was of the view that in the circumstances, noting that this was theappellant's first dishonesty conviction, a conviction alone would be sufficient penalty.9SubmissionsAppellant's submissions[12] The appellant brings the appeal on only one ground of appeal, that the DistrictCourt Judge was plainly wrong. She submits the Judge misapplied a specific fact andin doing so misunderstood the standard required for reckless possession of a stolenitem.[13] In particular, counsel for the appellant submits there is no room for anyinference that the appellant knew, at the time she was enquiring about whether thebracelet was real and what its value was, that the bracelet was stolen, or that she wasbeing reckless in her possession of it.Respondent's submissions[14] The respondent opposes the appeal. It says it was open to the Judge to find theappellant guilty of the third charge of receiving. Counsel for the respondent submitsthe Judge did not err in his assessment of the evidence and no miscarriage of justiceoccurred.Approach on appeal[15] An appeal against conviction is governed by s 232 of the Criminal ProcedureAct 2011. The Court must allow an appeal of a decision in a Judge-alone trial if theCourt is satisfied that:101) the Judge erred in their assessment of the evidence to such an extentthat a miscarriage of justice has occurred; or9 At [29].10 Criminal Procedure Act 2011, s 232(2)(b)–(c).2) a miscarriage of justice has occurred for any reason.[16] A "miscarriage of justice" is defined in s 232(4) as "any error, irregularity, oroccurrence in or in relation to or affecting the trial that— (a) has created a real riskthat the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trialthat was a nullity".[17] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".11 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict is actually unsafe" but that there isa real possibility the verdict would be unsafe.12[18] An unfair trial exists when errors are prejudicial or unacceptably give rise tothe appearance of unfairness. It is not every departure from good practice whichrenders a trial unfair.13 A miscarriage is "more than an inconsequential or immaterialmistake or irregularity".14 Rather, the errors or irregularities must depart from goodpractice in a manner that is "so gross, or so persistent, or so prejudicial, or soirremediable" that an appellate Court must condemn the trial as unfair and quash thedecision.15[19] If the appeal is allowed, the Court must set aside the conviction.16 The Courthas a broad discretion as to next steps, including the ability to direct that a judgmentof acquittal be entered, to direct that a new trial be held, to substitute a conviction fora different offence or to make any other order it considers justice requires.17Analysis[20] I now turn to assess whether a miscarriage of justice has occurred.11 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].12 At [110].13 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002]UKPC 19, [2002] 1 WLR 2237 at [28].14 Matenga v R [2009] NZSC 18 at [30].15 R v Condon, above n 13, at [78], citing with approval Randall v R, above n 13, at [28].16 Criminal Procedure Act, s 233(2).17 Section 233(3).[21] As the Court of Appeal held in R v Kennedy, the relevant knowledge orrecklessness that the property was stolen or dishonestly obtained must exist at the timeof receiving the property.18[22] The Judge misstated the time at which this state of knowledge orreasonableness applied by referring to it as the time at which the appellant gave thebracelet up. However, earlier in his judgment he referred to the correct time forapplying the test, being the time when the goods were received. I am satisfied that themisstatement was immaterial to the Judge's finding in this regard.[23] When the Judge made the finding as to the appellant's state of mind in relationto the bracelet, he had in mind that the bracelet had been stolen very recently, sometimein the preceding day. The clear inference of the Judge's finding that the appellantknew, or was reckless as to whether, the bracelet was stolen at the time she gave it upis that the Judge was of the view this state of mind applied at the time at which thebracelet came into her possession, within the last day. This misstatement does notrender the trial unfair. The situation might have been different had there been a moresignificant period of time between the time at which the property had come into theappellant's possession and the time at which she gave it up. However, given the shorttime between it having come into her possession and the time the appellant gave upthe bracelet there is no material error.[24] The next question is whether the Judge erred in his finding that the appellant'sactions indicated that she either knew or was reckless as to whether the bracelet wasstolen.[25] As to "knowledge", as the Court of Appeal recognised in R v Crooks, theremay be circumstances which are so compelling as to lead to an inference properlydrawn that the defendant was aware that the property was stolen, such as purchase ata gross undervalue, secrecy in the receiving, receiving the property at an unusual timeor place or in an unusual way, or the removal of identifying marks.19 As to"recklessness", in Cullen v R the Court of Appeal said in this context it requires the18 R v Kennedy [2001] 1 NZLR 314 (CA).19 R v Crooks [1981] 2 NZLR 53 (CA) at 58.conscious taking of an unreasonable risk.20 In R v Crooks, the Court of Appealrecognised that a substantial suspicion will give grounds for holding that the defendantwas reckless as to the possibility the property was stolen.21 The Court in Cullen v Radded that complete indifference about whether goods were stolen would itself amountto recklessness.22 As the Court there stated, "[i]t seems reasonably clear that ifsomeone receives property, the source of which is unknown, then a conscious risk istaken in determining not to make further inquiries."23[26] Counsel for the appellant submits that the appellant's enquiry of the shopowner as to whether the bracelet was real leads only to one inference, namely that atthat time the appellant did not know what she had and was making a genuine enquiry.That on its own may be insufficient to give rise to the required inference. But it wasopen to the Judge to accept that such a query could raise "alarm bells" that it is stolenproperty.[27] Counsel for the appellant then submits that the Judge failed to consider theexchange between the appellant and the shop owner outside the shop, and theappellant's subsequent behaviour, which counsel says could be equally consistent withan innocent mind. Mr Jensen says that the appellant's behaviour when she was spokento by the shop owner is consistent with her being cooperative and humble, notbehaviour consistent with acknowledging the item was stolen.[28] However, it is an available inference from the appellant's behaviour after shewas followed onto the street by the shop owner, coupled with the exchange in the shop,that the appellant had the required knowledge or was reckless as to whether thebracelet was stolen. The Judge formed the view that because the appellant gave thebracelet up so easily, and was even thankful that the shop owner was dealing with it inthe way she did, this meant that she either knew or was deliberately reckless as towhether the bracelet was stolen. I am satisfied such a view was a reasonable inferenceon the evidence as a whole. In particular, I see no flaw in the Judge's reasoning thatif the bracelet had in fact belonged to the appellant, "it is more likely that [she] would20 Cullen v R at [23], citing R v Harney [1987] 2 NZLR 576 (CA) at 579.21 R v Crooks, above n 19.22 Cullen v R, above n 20, at [23].23 At [23].not have given up the bracelet but would have asserted her right of ownership."24 Hisfinding does not create a real risk that the outcome of the trial was affected or resultedin an unsafe verdict.[29] This is a case where the Judge had some advantage over this Court in seeingand hearing the evidence. The evidence of the transaction included the appellant'sbehaviour when she came into the shop and asked whether the bracelet was real. It iscommon ground that the value of the bracelet was substantial. The shop owner gotthe appellant's name and told her to bring it back another time. The appellant left theshop and after that the shop owner realised she had purchased a ring off the appellantwhich had been stolen and ran after the appellant. The crucial evidence given by theowner is as follows:A. She came into the, I can remember it very clearly, she came into theshop, she stood by the counter by the doorway and wanted to know ifit was worth anything and what it was. So I had [a] good look at, at itand I thought she looked familiar and she had said that she'd soldsomething to us before. So I asked what her name was and I said youknow you can bring it back another time or words to that effect andshe left the shop. I checked up what I'd bought off her and I realisedthat I had purchased the ring that was stolen so she was nearly halfway down sort of by the Cathedral I ran off after her, called her nameand she stopped. And I just said to her look I believe this doesn'tbelong to you but it will belong to somebody that would like it backand that the ring she'd sold to us was stolen and that I would purchaseit off her if I could get it back to the shop, get it checked out by thepolice and, um, and which she did and then when she left she thankedme for being so nice about it, so it was very –[30] Taking the incident as a whole, it was open to the Judge to reach theconclusions that he did. He reached those conclusions based on inferences made as tothe appellant's behaviour throughout, including when she was apprehended. As I haveindicated, he saw and heard the witness, which in this case gives the Judge anadvantage over the appellate courts in an assessment of the evidence.Conclusion[31] For the foregoing reasons, I am not satisfied that a miscarriage of justice hasoccurred in this case.24 The decision, above n 1, at [26].[32] Although the Judge misstated the particular moment at which the appellant'sstate of mind was to be assessed, I am satisfied he had in mind the correct test andrelevant time and the misstatement did not affect the trial in any material way.Secondly, I am satisfied the Judge, having heard the evidence, was entitled to makethe inferences and findings he did.[33] The appeal against conviction is dismissed.____________________Grice JSolicitors:Philip Jensen Barrister, NapierElvidge & Partners, Napier