NATHAN v NEW ZEALAND POLICE [2019] NZHC 2683

NATHAN v NEW ZEALAND POLICE [2019] NZHC 2683 [21 October 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-29[2019] NZHC 2683BETWEEN TAMMY NATHANAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2019Counsel: W R Hawkins for AppellantL M Marshall for RespondentJudgment: 21 October 2019JUDGMENT OF THOMAS J[1] Ms Nathan appeals against her conviction for receiving stolen property worthless than $500, namely a Nissan Navara, being reckless as to whether the vehicle hadbeen stolen.1 The sole ground of appeal in the notice of appeal concerns whether thetrial Judge should have dismissed the charge rather than amending the value of thestolen property in the charge. The issue moved somewhat at the appeal hearing to bewhether there was sufficient evidence for a finding of guilty on the amended charge.[2] Ms Nathan had pleaded not guilty and was tried by judge-alone on 30 July2019. Ms Nathan did not give evidence. The prosecution called three witnesses, allpolice officers who executed a search warrant (on an unrelated matter) at a ruraladdress in Te Hauke on 2 January 2019. Their evidence was that they found the NissanNavara parked next to the dwelling on the property. They then conducted a check inthe police database, which identified the vehicle as stolen since November 2018. The1 Police v Nathan [2019] NZDC 17136.police officers approached the sole occupant of the property, Ms Nathan, who said"one of the bros brought it around" and she had "hot-wired" it and used it to drivearound in. Ms Nathan also referred to the person who had brought the vehicle aroundas a "prospect". The police officers' evidence was they assumed she was referring toa gang connection.[3] Mr Hawkins, who was also defence counsel at trial, cross-examined the threepolice officers, but their evidence was largely left unchallenged. The central issue waswhether the prosecution had proven all elements of the charge beyond reasonabledoubt. Ms Nathan was originally charged with receiving stolen property worth morethan $1,000 knowing it was stolen. The charging document alleged the vehicle wasworth $3,000. At the conclusion of the prosecution case, Mr Hawkins made an oralapplication to dismiss the charge under s 147 of the Criminal Procedure Act 2011 onthe basis no evidence had been offered as to the value of vehicle.[4] A discussion ensued between the Judge and counsel as to whether the value ofthe stolen property is an element of the charge requiring proof beyond reasonabledoubt or merely a matter going to penalty. The police prosecutor informed the Judgefrom the bar that the vehicle was understood to be worth approximately $1,100. TheJudge substituted the charge, reducing the amount to "under $500", and replacing theword "knowing" with "reckless".[5] The Judge found Ms Nathan had received the vehicle by assuming control ofit. She did so by hot-wiring it and using it to drive around in. There was also evidencesuggesting Ms Nathan had been reckless as to whether the vehicle had been stolen.The vehicle had damage consistent with a stolen vehicle. The ignition was damagedand there an improvised ignition system. Ms Nathan was clearly aware of this becauseshe had to hot-wire the vehicle rather than using the ignition. The Judge was satisfiedbeyond reasonable doubt Ms Nathan had appreciated the risk the vehicle might havebeen stolen and nevertheless elected to assume control of the vehicle for her own use,and so convicted her of the amended charge.[6] The Judge ordered Ms Nathan to come up for sentence if called upon in thenext 12 months. Ms Nathan does not challenge the sentence arrived at by the Judge,in the event her conviction appeal is unsuccessful.[7] Ms Nathan does not contest any of the conclusions reached by the Judge thatshe received stolen property. The sole ground of appeal is that the Judge ought to havedismissed the charge rather than amending it because of the concerns about the valueof the vehicle. Mr Hawkins submitted that while the Judge had jurisdiction to amendthe charge, he ought to have dismissed it because the prosecution had completed itscase and it was not open to the Judge to admit further evidence on the value of thevehicle.[8] The Crown opposes the appeal on the basis the Judge correctly amended thecharge. Ms Marshall submitted it was unnecessary to produce any further evidencebecause it was apparent from the evidence already led that the vehicle had at leastsome value, as Ms Nathan had used it to drive around in. In those circumstances, theprosecution had already proven beyond reasonable doubt the vehicle had a value ofless than $500.[9] As a preliminary note, it is beyond question the value of the stolen property isan element of the charge requiring proof beyond reasonable doubt, at least insofar asthe value must be within the ranges specified in s 247 of the Crimes Act 1961. Thatsection specifies the penalties for receiving stolen property, which vary depending onthe value of the stolen property. Several Court of Appeal authorities confirm thispoint.2[10] That said, the Judge had jurisdiction to amend the charge under s 133 of theCriminal Procedure Act 2011. This was also the approach suggested by the Court ofAppeal in R v Heather.3[11] The case can be distinguished from that of Cullen v R where the indictmentbefore the jury made no reference to the value of the allegedly received stolen vehicles2 R v Koura [1996] 2 NZLR 9 (CA); R v Heather CA198/01; and Cullen v R [2012] NZCA 413 at[17].3 R v Heather, above n 2, at [4].and the District Court Judge declined to allow the Crown to file an amendedindictment specifying the value of those vehicles. In the present case, the charge waslaid under ss 246 and 247 and the alleged value of the vehicle was specified.[12] Mr Hawkins submitted that the only evidence of value was that Ms Nathan haddriven the vehicle and that was not sufficient to prove value beyond reasonable doubt.The Judge was entitled to infer from evidence about which he was satisfied that thevehicle was of some value. And from that evidence he was entitled to be satisfied ofthe value beyond reasonable doubt. Furthermore, it goes without saying the vehiclewas worth at least something, even as scrap metal. That is a matter of which the Judgecould take judicial notice. The amended charge with the requirement that the value ofthe car "not exceed $500"4 was clearly made out on the evidence.[13] The situation is analogous to the circumstances of R v Koura where, in a caseinvolving theft of electricity, the Court of Appeal accepted that the value as alleged inthe charge was not proved beyond reasonable doubt but concluded the jury wassatisfied and entitled to be satisfied that the appellant had stolen electricity but of avalue undetermined. The Court decided that justice would be served by amending theindictment by deleting the alleged value and substituting a value not exceeding $100.The position in the present case is the same. The value of over $1,000 as originallycharged was not proved beyond reasonable doubt but there was sufficient evidence toenable the Judge to be satisfied beyond reasonable doubt that the vehicle had a valuenot exceeding $500.[14] Nor was there any prejudice to Ms Nathan in amending the charge. There isno suggestion the defence case would have been any different had Ms Nathanoriginally been charged with receiving stolen property under $500. In any event, itappears the Judge amended the charge prior to the commencement of the defence case,so it was still open to Ms Nathan at that stage to give evidence if she wished to. It isnot clear whether Ms Nathan was given the opportunity to replead to the charge asamended. She could, of course, have elected to do so. In any event, it cannot be saidthat there was any prejudice in this regard either, for example because she did not4 Crimes Act 1961, s 247(c).receive a full benefit for a guilty plea. The sentence imposed, to come up for sentenceif called upon, demonstrates the point.[15] Ms Nathan has failed to demonstrate a miscarriage of justice.5[16] The appeal is dismissed.Thomas JSolicitors:Bramwell Bate, Hastings for AppellantCrown Solicitor's Office, Napier for Respondent5 Criminal Procedure Act 2011, s 232.