GREENLAND V NEW ZEALAND POLICE HC HAM CIV 2008-419-92

GREENLAND V NEW ZEALAND POLICE HC HAM CIV 2008-419-92 5 February 2009IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2008-419-92BETWEEN ROYCE LEE GREENLAND Appellant AND NEW ZEALAND POLICE Respondent Hearing: 3 February 2009 Counsel: M B Meyrick for Appellant P J Crayton for Respondent Judgment: 5 February 2009JUDGMENT OF HEATH JThis judgment was delivered by me on 5 February 2009 at 3.00pm pursuant to Rule 11.14 of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Crown Solicitor, Hamilton Counsel: M B Mayrick, HuntlyIntroduction[1] Following a defended hearing before Judge Spear in the District Court at Hamilton on 22 and 23 September 2008, Mr Greenland was found guilty of theft of a Chevrolet pick-up truck (together with associated parts) and receiving a quad bike and post hole borer, knowing those items to have been stolen. Mr Greenland was convicted on both charges. [2] Mr Greenland was sentenced on 14 November 2008. A sentence of 12 months' imprisonment was imposed on the theft charge. A concurrent sentence of six months imprisonment was imposed on the charge of receiving stolen goods. [3] Mr Greenland appeals against the convictions entered on each of the two charges. There is no challenge to the sentence imposed.Background facts[4] The Chevrolet pick-up truck was being stored, while under restoration, on its owner's property in Hamilton. The truck was covered by a tarpaulin. On 20 August 2007, the owner noticed a Toyota motor vehicle parked beside it. Two men were looking under the tarpaulin at the truck. The owner took details of the Toyota vehicle. He then went to work. On his return, two or three hours later, he discovered that the Chevrolet truck and associated parts had been removed from his property. The owner reported the theft to the Police. [5] The Chevrolet wheel rims were listed on the TradeMe website for auction, on 9 February 2008. The listing was under the name of "Lazerlevel". That user name was traced to Murray Maxwell, an alias that had been employed on a number of occasions by Mr Greenland. [6] As part of the investigative process, police officers participated in the auction process. A police officer, acting on the owner's complaint, purchased the wheelrims. Arrangements were made to collect them in Kaitaia. The nominated collection point was a service station. [7] Mr Greenland bought the wheel rims and tyres to the collection point. He was arrested immediately. He elected to make no statement to the Police. [8] Subsequent inquiries revealed that the Toyota motor vehicle seen at the Hamilton premises on 20 August 2007 had been acquired through the TradeMe website on 3 July 2007, by a person using the name "Lazerlevel". [9] After arresting Mr Greenland, the police officers executed a search of his premises at Kaitaia. A quad bike was located. On checking registration details, police officers confirmed that the bike had been stolen, on 31 October 2007, together with a post hole borer, from a property in Raglan. On returning to Mr Greenland's property, police officers located the post hole borer. Mr Greenland elected not to make a statement to the Police in respect of the quad bike and post hole borer.Grounds of appeal[10] Mr Mayrick, for Mr Greenland, challenges the convictions on the basis that the Judge had insufficient evidence to draw inferences that Mr Greenland stole the truck and received the quad bike and post hole borer, knowing those items to have been stolen. In short, Mr Mayrick contends that there were equally available inferences open to the Judge that someone other than Mr Greenland committed the offences. For that reason, he submits, the Judge could not have been satisfied beyond reasonable doubt that Mr Greenland was the thief and receiver respectively.Preliminary issue: Admission of additional evidence on appeal[11] Mr Mayrick seeks leave to adduce additional evidence on appeal. That evidence takes the form of an affidavit sworn by Mr Greenland on 7 November 2008. The application falls to be considered against Mr Greenland's election, at the defended hearing, not to give or call evidence.[12] Mr Greenland's complaint is that, during the course of the hearing in the District Court, counsel for the Informant was provided with information about a possible alibi, involving the timing of an operation on Mr Greenland's shoulder at the Southern Cross Hospital at Hamilton. The timing was such that Mr Greenland believed it could have foreclosed the ability of the Informant to prove Mr Greenland was present when the truck was stolen. However, counsel for the Informant declined to make further inquiries. [13] I do not comment on whether it was appropriate or inappropriate for prosecuting counsel to decline to make inquiries. It is clear that the information as to the time and date on which Mr Greenland was admitted to hospital could have been put before the Court by counsel for Mr Greenland calling someone from the hospital, a place not far distant from the Court. Equally, although he had the right to elect not to give evidence, it was open to Mr Greenland to give the same evidence to the Court. [14] As the evidence could readily have been called on behalf of the defence, it would be wrong in principle to allow Mr Greenland's affidavit to be admitted to bolster evidence not before the trial Judge. And, in any event, the affidavit evidence as to timing does not (as Mr Greenland accepts) completely rule out an opportunity for Mr Greenland to be present when the truck was stolen. [15] The application is refusedDid Mr Greenland steal the truck and associated parts?[16] There was no direct evidence that Mr Greenland stole the pick-up truck and associated parts. The evidence against Mr Greenland was circumstantial. The question is whether it was safe for the Judge to draw an inference, from available evidence, that Mr Greenland was the thief. [17] Mr Greenland was charged, in the alternative, with theft and receiving the associated parts. First, Judge Spear directed himself to the elements of the charge of theft. He was conscious that the issue was one of identity and that it was incumbenton the prosecution to prove beyond reasonable doubt that Mr Greenland was either the principal offender or a party to that crime. [18] Judge Spear said:[15] There is no explanation provided by the defendant. That does not necessarily add to the case against him, but his silence in this respect can be considered deafening. [16] I am in no doubt that the defendant was either the thief or the receiver of the wheel rims and the tyres, or more exactly the Chevy pickup truck and the tyres. It is, however, not a question of choosing which is the more likely between the two but first, whether there is evidence that satisfies me that the charge of theft is proven. If not, then whether the alternative charge of receiving has been proven. [17] What connects the defendant to the theft is not just being found in recent possession of the stolen goods (six months later), but also that a motor vehicle purchased by him either nominally, or otherwise, a month before the Chevy truck was stolen, provides a connection to the theft of the Chevy truck. It is correct that there is no identification of either of the two men who arrived at [the owner's] property in the red Toyota Celica car that day, 20 August 2007, but the connection of course is that this is a car that was purchased by the defendant only a month beforehand. [18] Mr Meyrick put to the constable in charge of the case the suggestion that the defendant may have been in Kaitaia at the time of the theft and the constable acknowledges that he did not pursue any enquiry about that. Of course, he did not have to do so. The fact that he did not undertake any such enquiries does not either strengthen the case against the defendant or weaken it. It would most certainly have weakened the case if the defendant had given a statement or evidence that indeed he was in Kaitaia on 20 August 2007. That is, that the defendant had given notice to the Police in good time beforehand that he was in Kaitaia at the time the Chevy truck was stolen and then gave evidence in Court confirming that to be so. That would sound against the Police and certainly raise at least a doubt as to his involvement with the theft such that that charge could not have succeeded. However, simply to float it to the Police witnesses that the defendant was in Kaitaia, in the absence of any evidence that might suggest that that was so, does not add to this case one way or the other. Nor does the suggestion, again floated to the constable, that the defendant's brother had use of the motor vehicle. There is no evidence before the Court other than that the brother may have had the use of it at times. That neither adds to the case or detracts from it, that is in respect of the case against the defendant. [19] So, the defendant being found within six months in possession of the stolen wheel rims and tyres and indeed actively selling those items through Trademe by using his own account, coupled with the connection to the Chevy truck by the presence of two men in the defendant's car within a couple of hours of the time that it was stolen, in my view leaves me quite clear and sure that the defendant was one of the thieves.[19] Leaving to one side reliance on the goods being in the possession of Mr Greenland some six months after they were stolen, the combination of other facts to which the Judge referred lead, in my view, inescapably to the conclusion that Mr Greenland was involved in the theft, either as a principal or a party. It is not credible to suggest that the presence at the scene of a vehicle that was purchased on-line by a person using Mr Greenland's TradeMe identity, the placement of the associated parts for sale on TradeMe through the same identifier and the delivery of the goods to the nominated meeting place by Mr Greenland are purely coincidental. That combination of facts, in my view, is sufficient to prove Mr Greenland's guilt, on any view of the evidence. [20] In those circumstances, it is unnecessary for me to consider whether the doctrine of recent possession applied. In my view, the Judge was entitled to convict on this charge, leaving to one side any inference that might have arisen through reliance on that doctrine. [21] The appeal against conviction for theft fails.Did Mr Greenland knowingly receive the stolen quad bike and post hole borer?[22] Mr Greenland was charged with burglary of the premises from which the two items were taken and, alternatively, with receiving stolen property. Judge Spear discussed the relevant evidence as follows:[23] There is nothing that points to the defendant's involvement in the burglary. I am, however, satisfied that there was a burglary with those two items being stolen in the course of it. Further, the defendant was found in possession of the quad bike and post hole borer some four months later. There is no satisfactory explanation provided by the defendant as to how he came into possession of those items. I am satisfied that they were found in his possession at a time relatively recent to when they were stolen given the particular nature of the goods concerned. [24] There was evidence that the defendant's partner made a phone call that was overheard by one of the police jailers to the effect that the Police would be coming to get the post hole borer and to get rid of it. I ruled that this was admissible not as to the truth of its contents, but just as part of the res gestaeand as to the words spoken at that time. The issue as to whether that evidence had any probative value was left for later consideration. I do not consider that it has any probative value at all in the case the way it has beenpresented to me and it certainly does not add to or detract from the case against the defendant. [25] The defendant was unquestionably been found in possession of these recently stolen items. He has not provided, as was his ability, an explanation as to how he has come into possession of these items. I am in no doubt at all that it can be safely, logically and conclusively inferred that the defendant come into possession of these stolen goods at a time when he knew that they had been stolen. That is an available inference in the absence of any satisfactory explanation and, in all the circumstances of this case, I have no difficulty drawing that inference. [26] Accordingly, I do not find the charge of burglary to have been proven but I do find the alternative charge of receiving proven to the high criminal standard of beyond reasonable doubt.[23] The quad bike and post hole borer were not located until the Police searched Mr Greenland's Kaitaia property in February 2008. The items had been stolen on 31 October 2007, some four months earlier. The Judge's inference of identity is based solely on the goods being found in Mr Greenland's possession four months later, with no satisfactory explanation for lawful acquisition. [24] Judge Spear considered that the period of four months that had elapsed between the theft and the location of the items on Mr Greenland's property as being sufficiently proximate to regard the lack of a satisfactory explanation for possession as adding to the evidence against Mr Greenland. The essence of the Judge's reasons for finding the receiving charge proved can be found in para [25] of his judgment: see para [22] above. [25] Mr Meyrick submitted that the Crown had not proved beyond reasonable doubt that the quad bike and post hole borer were in Mr Greenland's "possession" (in a legal sense). Nor, he contended, had the Crown demonstrated that the goods were located "reasonably soon" after the theft. The term "reasonably soon after the theft" is taken from a recent judgment of the Court of Appeal in R v Stuart [2008] NZCA 66. [26] Delivering the judgment of the Court of Appeal in Stuart, Harrison J said:[15] The sole ground raised on appeal by Mr Greig is that the trial Judge, Judge Moore, misdirected the jury on what is described as the doctrine of recent possession. Mr Greig cites as a correct statement of the law thispassage from Robertson (gen ed) Adams on Criminal Law (looseleaf ed) at [CA219.09]: The doctrine of recent possession is a rule allowing proof of theft or receiving by circumstantial evidence, rather than a rule of substantive criminal law. If a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that that person either stole the property or received it from the thief The nature of the property, and the circumstances in which it was stolen, may indicate that the accused was the thief rather than the receiver In appropriate cases recent possession may also provide circumstantial evidence that the accused committed other offences such as burglary . (Citations omitted.) [17] When pressed in oral argument to specify the misdirection, Mr Greig initially submitted that the Judge's use of the phrase 'a specific piece of law that applies to this case' constituted a material error. We disagree. What is known as the doctrine of [recent] possession is no more than a description of the reasoning process legitimately available to a Court when evaluating evidence led at trial to support a dishonesty charge. Whether the doctrine is properly described as a 'specific piece of law' or not is of no consequence. Judge Moore was right about its purpose and effect. As Mr Greig accepted, he correctly directed the jury that, in the absence of an explanation which might reasonably be true, it could draw an inference adverse to Mr Stuart from the fact of his possession of the stolen bike the day after the robbery. (my emphasis)[27] As Mr Crayton for the Police, submitted, there is an inherent flexibility in determining whether possession is "recent". Harrison J was right to characterise the "doctrine" as no more than a label for a process of reasoning. [28] As the issue of identity is one of inference, I am in as good a position as Judge Spear was to determine whether an inference of identity was open to him. As an appellate Judge, I am required to make my own assessment of the evidence to determine whether the inference was safe. It is not a matter of simply determining whether the finding was one open to the Judge on the evidence. Generally, seeStichting Lodestar v Austin, Nichols & Co Inc [2008] 2 NZLR 141 (SC) at [16]. [29] I have concerns about the safety of the verdict on the receiving charge. There is no direct evidence to connect Mr Greenland to the burglary of the Raglan property. The Judge was not satisfied beyond reasonable doubt that Mr Greenland was the burglar. While the stolen items were located at Mr Greenland's Kaitaia property at the same time the Police were conducting inquiries into the theft of thepick-up truck, it is trite that the evidence on each charge must be considered independently. The coincidence of location of the three stolen items adds little to the question whether Mr Greenland received the items with knowledge they had been stolen. Even if, as I consider, it is very likely that Mr Greenland did receive the stolen property, having regard to the time that had elapsed since the burglary, it is not safe to infer, beyond reasonable doubt, that he received the goods with knowledge they were illegally procured: cf R v Wanhalla [2007] 2 NZLR 573 (CA) at [49]. [30] In my view, having regard to what was said in Stuart, the passage of some four months between the date on which the items were taken from the Raglan property and the time at which they were located in Kaitaia is too long to rely safely on the doctrine of recent possession. [31] I am not satisfied that the receiving charge was proved beyond reasonable doubt. This part of the appeal succeeds.Result[32] For the reasons given: a) The appeal against conviction on the charge of theft of the Chevrolet pick-up truck and associated property is dismissed. b) The appeal against conviction on the charge of receiving the quad bike and the post hole borer is allowed. That conviction is set aside, as is the sentence imposed in consequence.[33] As a sentence of six months imprisonment was imposed concurrently on the receiving charge, there is no alteration to the effective term of imprisonment imposed on Mr Greenland. _____________________________ P R Heath J Delivered at 3.00pm on 5 February 2009