MANUKAU v NEW ZEALAND POLICE [2022] NZHC 1591

MANUKAU v NEW ZEALAND POLICE [2022] NZHC 1591 [6 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000044[2022] NZHC 1591BETWEEN TESSA MANUKAUAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 2022Appearances: Andrew Young on instructions from Jonathan Wiles for theAppellantRobert McDonald for the RespondentJudgment: 6 July 2022JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 6 July 2022 at 3:00 pm.Registrar / Deputy RegistrarDate:Introduction[1] After a Judge-alone trial on 9 August 2021 at the Manukau District Court,Judge N R Webby found Ms Manukau guilty1 on one charge of receiving a stolenmotor vehicle.2 On 21 January 2022, he sentenced Ms Manukau to 80 hours'community work and ordered her to pay reparation of $400 to the victim.3[2] Ms Manukau now appeals against her conviction on the dual bases that:(a) not all relevant information was disclosed to the trial Judge; and(b) the Judge erred in his assessment of the evidence (both due to theundisclosed evidence and in terms of the evidence he did have at thetrial).[3] Ms Manukau accordingly seeks to admit the previously undisclosedinformation as fresh evidence on appeal. The Crown does not oppose the admissionof the evidence, but opposes the appeal on its merits.The offending and the evidence[4] Just two witnesses gave evidence; both for the prosecution. Ms Manukauelected not to give evidence or call evidence.[5] The evidence of the owner of the car, Mr Singh, was read by consent. He saidthat on 1 February 2021, while at his work in Ngatea, he noticed that his Mazda Demiowas missing from its parking space outside. He reported it as stolen.[6] The second witness was Constable Martel, who was one of the officers whostopped the car in Manukau. He gave evidence of the events in the early hours of10 February 2021 when the car was stopped. He also conducted an electronicallyrecorded interview ("EVI") with the driver, Ms Manukau, an hour or so later.1 Police v Manukau [2021] NZDC 25852.2 Crimes Act 1961, s 246. Maximum penalty depends on the value of property received, as set outin s 247.3 Police v Manukau DC Manukau CRI-2021-092-1358, 21 January 2022.[7] The stolen car came to the attention of the Police after it was picked up by anAutomatic Number-Plate Recognition ("ANPR") camera in Manukau. The APNRidentified a car with number plates, GSL537, which had been reported as stolen.[8] This information was relayed to the Police. Constable Martel, who was onduty in the area, identified a Mazda Demio bearing these registration plates travellingsouth towards Manurewa. The Police pulled the car over. Constable Martel saw ascrewdriver stuck in the ignition. A glass quarter window at the rear was missing. Theregistration card on the windscreen was for a 2002 Toyota Gaia, registration numberEYZ12.[9] Ms Manukau was driving the car and her brother, Mr Hadfield, was in the frontpassenger seat.[10] Ms Manukau was arrested by Constable Martel and taken to the ManukauPolice Station where she underwent an EVI.[11] Set out below are the relevant portions from the interview:"Constable Martel Um, yeah, so tell me everything about you and thisvehicle?Ms Manukau Well [inaudible] picked it up an hour before yous hadstopped me. And that was from sister-in-law Katana.In yeah Pap– oh Papatoetoe I picked it up MangereConstable Martel right you've said Papatoetoe or Mangere ah[inaudible]Ms Manukau Like it was like, kinda [inaudible]Constable Martel Oh right in between?Ms Manukau Yeah.Constable Martel Um who is your sister-in-law?Ms Manukau Katana Constable Martel And what's Katana's last name?Ms Manukau Mm Katana. She's gotta different name on Facebook.Constable Martel Ok. And what were going to use it for?Ms Manukau [Inaudible] home.Oh I was only gonna get dropped off home.It was only around the corner from where you stoppedme.Constable Martel and when we've come to a stop at the Mobil gasstation we've obviously seen in the ignition ascrewdriver and the rear left passenger sidequarter glass has been smashed whadda you makeof this what can you tell me about that?Ms Manukau Oh well she said it was stolen from her so yeah.Constable Martel when you were speaking to Katana about the carwhat.Ms Manukau 'Cause I go why is it like [inaudible] dodgy.looking yeah she was like oh now someone tried tosteal itYeah 'cause I looked it up [inaudible] and it wasn'tstolen [inaudible] so.Constable Martel Okay. So, she's claiming it to be her own and Ms Manukau Yeah.Constable Martel it was stolen from her recently?Ms Manukau Yeah.Constable Martel Okay. Right so when you did receive that, yeahseeing the screwdriver. You believed Katana youknow and her story of it being st– stolen off of her?Ms Manukau Yeah.Constable Martel Right so when you arrived was it already on?Ms Manukau Yeah.Constable Martel Okay how long were you at um her house?Ms Manukau Like half an hour.Constable Martel Right and where was the car at the time?Ms Manukau Ah around the back of her house.Constable Martel Okay. And Katana you're saying is your sister-in-law.Where do you know an address of where you pickedit up?Ms Manukau Mmm. [inaudible]. I dunno what street it is but[inaudible] Lodge.We just call it the Lodge.Constable Martel Yeah well considering that there are screwdriversthere the quarter glass is broken, wouldn't you havethought that it's a bit, you know silly to be driving avehicle like that?Ms Manukau But it didn't come up as stolen when I looked it up so.So I's just like oh yeah must be true.Constable Martel Okay. How long have you known Katana for?Ms Manukau I dunno.Two, three months.Constable Martel Okay. And this is the first time you've seen that car?Ms Manukau Yeah.Straight up.Constable Martel Okay. Right so after driving home your plan was to.Ms Manukau Get dropped off.Constable Martel So drop um go home and then what was the plan withthe vehicle after that?Ms Manukau I was only getting dropped off.Constable Martel Oh [inaudible] so you were but you were driving?Ms Manukau Yeah.[inaudible] got the licence.I just wanted to go home."District Court decision[12] The Judge identified three elements of the charge the prosecution had to provebeyond reasonable doubt:(a) the vehicle was stolen or obtained by any other imprisonable offence;(b) Ms Manukau received the vehicle from another person; and(c) when Ms Manukau received the vehicle, she was reckless as to whetheror not it had been stolen or so obtained. Recklessness in the context ofs 246 of the Crimes Act 1961 required the conscious taking of anunreasonable risk.[13] The Judge noted the defence did not dispute that Ms Manukau had receivedthe vehicle, nor that the vehicle was stolen. The sole element in dispute, therefore,was whether Ms Manukau, when she received the vehicle, was reckless as to whetherit was stolen or so obtained.[14] The Judge was satisfied the prosecution had made out that element. He deemedthe combination of the following factors proved Ms Manukau's recklessness to therequisite standard:(a) Ms Manukau received the car at an unusual time (the early hours of10 February 2021);(b) she received it from her sister-in-law "Katana". She knew neitherKatana's last name nor her address;(c) at the time of receipt, the car had a screwdriver in the ignition, not keys.The back-quarter glass was removed. The identifying marks of theoriginal vehicle had been removed. The number plate on the vehiclehad been stolen;(d) Ms Manukau had, herself, admitted the car was "dodgy-looking"; and(e) the Judge considered it implausible in all the circumstances thatMs Manukau would have, as she told the Police, made enquiries onreceiving the vehicle about whether it was stolen. He rejected thedefence's claim that she had made such an enquiry.[15] Accordingly, with the third element proved, and the first two elements not indispute, the Judge found Ms Manukau guilty of receiving.Approach on appeal[16] Section 232 of the Criminal Procedure Act 2011 governs appeals againstconviction. This Court must allow the appeal if satisfied the Judge erred in his or herassessment of the evidence such that a miscarriage of justice has occurred, or if amiscarriage of justice has occurred for any reason.4 A miscarriage of justice includesany error, irregularity or occurrence in or in relation to or affecting the trial that:5(a) has created a real risk the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[17] A real risk arises if there is a reasonable possibility the Judge would havedelivered a more favourable verdict if nothing had gone wrong.6[18] Where, as is the case here, the appellant challenges the lower Court's factualfindings, the appellant must generally satisfy the appeal Court that:7(a) the conclusion of the lower Court was not open to it on the evidence;and(b) the lower Court was plainly wrong in the conclusion reached.[19] The most comprehensive, recent formulation on the correct approach to anappeal under s 232(2)(b) against a Judge-alone trial verdict involving challenges to theJudge's factual findings is the Supreme Court's decision in Sena v R.8 There, WilliamYoung J held that although the appellant is required to show error, the appellate Courtis required to form and act on its own assessment of the evidence.9 If the appellateCourt comes to a different view on the evidence, the trial Judge will necessarily haveerred and the appeal must be allowed.104 Section 232(2)(b)–(c).5 Section 232(4).6 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].7 Rae v International Insurance Brokers (Nelson Malborough) Ltd [1998] 3 NZLR 190 (CA) at 197.8 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.9 At [20] and [26].10 At [38].[20] Section 232(2)(b) requires a focus on the Judge's assessment of the evidence,which presupposes the existence of reasons from which the substance of thatassessment can be discerned.11 A Judge's reasons should demonstrate:12" an engagement with the case, identify the critical issues in the case,explain how and why those issues are resolved, and generally provide arational and considered basis for the conclusion reached."[21] Having said that, an appellate Court must take into account any advantages atrial Judge may have had, particularly where the challenges are to credibility findingsbased on contested oral evidence. In such circumstances the appellate Court willexercise "customary caution".13Application to admit new evidence on appeal[22] Before embarking on an analysis of the evidence and the Judge's reasoning, itis necessary to identify the new evidence which the appellant seeks to adduce on thisappeal and determine its admissibility.[23] Mr Young, for Ms Manukau on instructions from Mr Wiles, advanced theappeal in part on the basis of fresh evidence (the previously undisclosed information)in the form of:(a) the notebook entry of Constable Alex Turner, dated 10 February 2021,recording his questioning of Mr Hadfield when apprehended by Police;and(b) the transcript of Mr Hadfield's EVI with Constable Turner, also on10 February 2021.[24] Mr Young submitted that both the notebook entry and the EVI are freshevidence. Although he did not expand on the reason for their non-disclosure at trial,Mr McDonald, for the Police, accepted that the non-disclosure was in error and thatthe evidence was fresh and cogent and thus could be admitted on the appeal. Although11 At [28].12 At [36].13 At [38].he did not concede that had it been before the Judge, it would have caused him toarrive at a different decision.[25] I agree the evidence is "fresh" in the sense that term is understood.14 I alsoagree it is cogent. The effect of its admission is a different question which is dealtwith later in this judgment.[26] I am satisfied the evidence should be admitted on appeal and rule accordingly.The new evidence[27] As noted, Mr Hadfield was also interviewed, both at the scene and later by EVIat the Manukau Police Station. Both records of interview were attached toMs Manukau's affidavit filed in support of the application to admit the new evidence.[28] The relevant portions taken from Constable Turner's notebook of his interviewwhen he spoke with Mr Hadfield after the car was stopped are as follows:"Constable Turner How long have you been a passenger in this vehicle?Mr Hadfield Maybe an hour.Constable Turner Where were you when you first entered the vehicle?Mr Hadfield Mangere.Constable Turner Who do you think owns the vehicle Mr Hadfield My sister-in-law Santana.Constable Turner Did you suspect that the vehicle might have beenstolen as it has a broken quarter light window and ascrewdriver in the ignition?14 See Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120] where the Privy Council commentedthat "the proper basis on which admission of fresh evidence should be decided is by the applicationof a sequential series of tests. If the evidence is not credible, it should not be admitted. If it iscredible, the question then arises whether it is fresh in the sense that it is evidence which couldnot have been obtained for the trial with reasonable diligence. If the evidence is both credible andfresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, itwould have no effect on the safety of the conviction. If the evidence is credible but not fresh, thecourt should assess its strength and its potential impact on the safety of the conviction. If itconsiders that there is a risk of a miscarriage of justice if the evidence is excluded, it should beadmitted, notwithstanding that the evidence is not fresh."Mr Hadfield No, because my sister-in-law, Santana, told me thatshe brought it with the keys, then it was stolen fromher and then she got it back.Constable Turner Where does Santana live?Mr Hadfield I don't know. She lives everywhere."[29] Mr Hadfield was taken to the Manukau Police Station where the EVI wasconducted by Constable Turner. The relevant portions of that interview follow:"Constable Turner what I'm wanting to ask you is how you is howyou came about to be the passenger of that vehicle,and whether you knew it was stolen Mr Hadfield No.Constable Turner No, why? So, the vehicle broken rear quarter lightwindow. and a screwdriver in the ignition. why did you not think it was stolen?Mr Hadfield Because the story that was given to us was made tobe believable.Constable Turner So, who gave you the story that you believed thatit wasn't stolen?Mr Hadfield Um, my sister-in-law.Constable Turner Who's your sister-in-law?Mr Hadfield Santana.Constable Turner What's her last name?Mr Hadfield I have no idea.Constable Turner so what did Santana tell you about the vehicle?Mr Hadfield that she had purchased oh, that she had bought thecar and the car was sold to her. She had the keys,and then the car was stolen from her, and then whenshe got it back it's how she had to drive it around untilshe got it fixed.Constable Turner When did she buy the car?Mr Hadfield I don't know. She didn't say.Constable Turner When did it get stolen?Don't know?Mr Hadfield No.Constable Turner how long had you been in that vehicle for?Mr Hadfield About an hour.Constable Turner Had you been in that vehicle before?Mr Hadfield Yep. I think from the last three days, maybe yeah. Shepicked me up, and taken me places.Constable Turner Who?Mr Hadfield Santana .Constable Turner Okay. Where did she take you?Mr Hadfield shopping and stuff 'cause I don't have a vehicle ofmine she had a ride, so I asked her.Constable Turner prior to myself and my partner stopping you at theMobil gas station in Clendon Park, where wereyou then an hour earlier? Where did you come from?Mr Hadfield Mangere.Constable Turner Whereabouts in Mangere?Mr Hadfield Do I have to give an address?Constable Turner You don't have to.Mr Hadfield I don't want to say it.Constable Turner Okay. Oh, and where does Santana live?Mr Hadfield She lives all over the place.Constable Turner She does have a, a house that she rents or stays atregularly?Mr Hadfield NahCould be anywhere.Constable Turner Okay you're sure that you didn't think that vehiclewas stolen?Mr Hadfield I'm positive. I don't [inaudible].Constable Turner Yeah, you fully believe Santana?Mr Hadfield Yep."[30] Mr Hadfield was not charged and was permitted to leave.Approach to analysis[31] Before me, the focus of Mr Young's challenge was on whether the Judge wascorrect to reject Ms Manukau's account as taken from her EVI. He accepted that ifthis Court on appeal was to determine that all the evidence, including the newevidence, does indeed provide a sufficient evidential foundation to rejectMs Manukau's account, it is unnecessary to move on to consider whether when shereceived the car she was reckless as to whether it had been stolen. He accepted thatthe balance of the evidence was sufficient to prove that element.[32] Accordingly, the approach to deciding the core question on this appeal requiresme to first consider whether, on the evidence before him at trial, the Judge was correctto reject Ms Manukau's account. If the answer to that question is no, the appeal mustbe allowed because there would be a real risk the outcome of the trial would have beenaffected or an unfair trial resulted. Only if the answer is yes, is it necessary to moveon to consider the second question. That is whether the new evidence changes theconclusion that the evidence at trial provided a sufficient evidential or factualfoundation to reject Ms Manukau's account.Was the Judge correct on the evidence before him to reject Ms Manukau'saccount?[33] Mr Young submitted that the way the Judge framed the central issue in givinghis reasons was incorrect. The Judge emphasised it was clear the vehicle had beenstolen. However, the criticism is that he did not explain whether it was reckless forMs Manukau to have accepted her sister-in-law's explanation in the circumstances,nor whether Ms Manukau's explanation and her subsequent attempts at due diligencewere credible. He noted that the defence had always accepted the car was stolen. Thatissue had no bearing on the question of recklessness.[34] He further submitted that the Judge erred in:(a) finding Ms Manukau's enquiries on the car's status after receiving itimplausible;(b) drawing an adverse inference from the fact the car was lent toMs Manukau after midnight;(c) drawing an adverse inference from the fact the vehicle's identifyingmarks had been removed and that the car displayed the incorrectregistration details; and(d) finding as fact that Ms Manukau did not know her sister-in-law's lastname.[35] Mr McDonald submitted that the Judge did not err by disbelievingMs Manukau's narrative given that it was inherently unlikely in the context of theother evidence before the Court.[36] I agree with Mr McDonald for the reasons he advanced.[37] First, on Ms Manukau's own admission the car was "dodgy looking". As aconsequence, she claimed that she asked her sister-in-law why that was. Theexplanation she claimed she was given was unlikely and improbable. Ms Manukauaccepted as much because she told Constable Martel she undertook a search to checkif the car was stolen.[38] Secondly, and relatedly, in terms of the Court of Appeal's comments in Cullenv R there were "obvious warning signs".15 This put her on notice to make furtherinquiries. She claimed she did. She said she "looked it up" and "it wasn't stolen".She gave no further details as to how and where these inquiries were conducted. TheJudge was correct to reject this explanation. Any search would likely have revealedthat the vehicle was stolen because a short time after the alleged search an ANPRcamera detected the vehicle. Furthermore, this claim needs to be viewed in the contextof all the circumstances which, for the reasons that follow, I am satisfied are inherentlyimplausible.[39] Ms Manukau does not appear to have asked her sister-in-law the sorts ofobvious questions one might have expected of someone who was making a genuineattempt to assess the risk of the car being stolen. For example, she did not ask whereand when the car was purchased, how much she paid for it or who she bought it from.Nor did Ms Manukau undertake the most obvious of due diligence checks expected ofsomeone in her position. She did not compare the number plates on the car with theregistration card on the windscreen. Had she done so it would have been immediatelyobvious that they did not match. The alpha-numeric details on the registration platesdid not match those on the registration card and the details on the registration cardwere for an entirely different make and model and year of car. Less convincing in myview is the Judge's finding of an adverse inference to be drawn from the car'sidentifying details being removed, unless this was a reference to the mismatch betweenthe registration plates and the registration card. The Vehicle Identification Numberwas still intact at the time the car was recovered. It was these details which permittedthe Police to trace the registered owner.15 Cullen v R [2014] NZCA 325, [2014] 3 NZLR 471 at [12].[40] As to the context and circumstances, the Judge observed, correctly in myassessment, that while "no one piece of evidence is necessarily conclusive incombination they clearly establish, to a sufficient standard, Ms Manukau's necessaryrecklessness". That combination of circumstances included the timing of these events(that is the late hour), the borrowing of the car to get home, the uncertainty andvagueness of her sister-in-law's name and residential details, and the car being parkedaround the back of the house with its engine running. Mr Young's other criticisms ofthe Judge's findings would have some force if they each stood alone. But that is nothow the Judge treated them.[41] Finally, it should not be overlooked that Ms Manukau's account toConstable Martel was not on oath. She elected not to give evidence. Her version ofevents was never tested in cross-examination. In the circumstances of this trial theJudge was entitled to accord it less weight than if it had been given on oath.[42] For these reasons I am satisfied the Judge was correct to reject Ms Manukau'saccount on the question of recklessness. Having so found, I turn to consider whetherthe admission of the new evidence changes that assessment.Does the new evidence change the assessment that the evidence at trial provideda sufficient evidential or factual foundation to reject Ms Manukau's account onthe issue of recklessness?[43] The essence of Mr Young's submission on this point is that had the newevidence been available at trial, it would have materially affected the body or pool ofevidence available to the Judge, such that its omission has created a real risk theoutcome of the trial was affected or resulted in an unfair trial or a trial that was anullity.[44] In particular, Mr Young submitted that Mr Hadfield's account to ConstableTurner "reinforced" Ms Manukau's account. He supported Ms Manukau's claim ofwhat their sister-in-law had said about the car and its provenance. Mr Hadfield'saccount also supported his sister's vagueness around their sister-in-law's name andaddress because he was similarly uncertain.[45] While it is regrettable that the undisclosed information was not before theJudge, I cannot accept its omission led to a miscarriage of justice. My reasons follow.[46] First, while Mr Young is correct that Mr Hadfield's evidence if given inaccordance with his EVI would have supported Ms Manukau's account of what theirsister-in-law said about the car, the Judge did not approach his assessment on the basisthat Ms Manukau's account of what her sister-in-law told her was never said. Theposition might have been different had the Judge determined that he did not believeMs Manukau's account of what her sister-in-law had told her about the car. However,the Judge's decision did not turn on that finding. The Judge appears to have acceptedMs Manukau's evidence as to how her sister-in-law explained the provenance of thecar. What the Judge did not accept was Ms Manukau's explanation for why shebelieved the car was not stolen.[47] Secondly, the Judge's findings on the inadequacy of Ms Manukau's duediligence apply with equal force to Mr Hadfield's evidence. Had he given evidence itis inevitable these deficiencies would have been explored in cross-examination. Hewould have been asked about these not only in relation to himself but also his sister.The adverse consequence to Ms Manukau's defence would likely have beenconsiderable.[48] Thirdly, I accept there is some force in Mr Young's submission thatMs Manukau's vagueness around her sister-in-law's details would have been sharedby her brother, with the effect that Ms Manukau's credibility would have beenenhanced (rather than the Judge making the adverse inferences he did). However,Mr Hadfield's own credibility would not have been enhanced by the patent reluctancehe revealed when he declined to answer questions about where they had come frombefore they were picked up by the Police. Similarly, Mr Hadfield's failure to ask hissister-in-law about how she acquired the car, or to make any attempt to reconcile theregistration plates with the registration card, are such that even had he given evidencethe Judge would almost certainly have put his evidence to one side in the same wayhe did Ms Manukau's explanation.[49] Fourthly, nothing in Mr Hadfield's evidence, had it been led at trial, wouldhave affected the way Constable Martel would have been cross-examined or, had hebeen called, any cross-examination of Mr Singh.[50] Finally, as for Mr Hadfield's opinion that the car was not stolen, that isirrelevant and, plainly, inadmissible.[51] For these reasons I am satisfied that even if Mr Hadfield's evidence had beenavailable to the Judge, the result would have been the same. It follows that justice hasnot miscarried and the conviction should stand.Result[52] The new evidence is admitted on appeal.[53] The appeal against conviction is dismissed.Moore JSolicitors:Mr Wiles, AucklandCrown Solicitor, Manukau