HUNTER v R [2021] NZCA 75

HUNTER v R [2021] NZCA 75 [22 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA770/2018CA26/2019[2021] NZCA 75BETWEEN SHANE ARRON HUNTERFirst AppellantLEIGH JOHN HUNTERSecond AppellantAND THE QUEENRespondentHearing: 11 and 12 November 2020Court: Kós P, Thomas and Gendall JJCounsel: J W Mackey for First AppellantR M Mansfield and H R Smith for Second AppellantE J Hoskin for RespondentJudgment: 22 March 2021 at 9 amJUDGMENT OF THE COURTA The applications for extension of time are granted.B The application to adduce fresh evidence on appeal is declined.C The appeals against conviction are dismissed.D Mr Leigh Hunter is to appear before the District Court at Auckland onWednesday 24 March 2021 at 11am to determine resumption of hisoriginal sentence.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] The Hunter brothers were builders. They cohabited a house in Kohimarama.Police executed a search warrant at the house on 24 May 2016. The house was full ofbuilding construction tools. The Hunters claimed the tools were theirs (or had beenleft at the house by other persons). Taking a contrary view, the police contactedpersons who had made complaints about tools that had been stolen in the Aucklandarea. They also placed an advertisement on a builders internet site. They alsotelephoned a cellphone number found on one of the tools. That call was answered bya Mr Benjamin Hurdley. He said the tool was indeed his, and had been stolen fromhis vehicle in January 2016. Other persons also came forward and claimed tools asbeing theirs, having been stolen between 2014 and 2016.[2] Both brothers were charged with receiving stolen goods. They stood trialbefore Judge Ryan and a jury in the District Court at Auckland. Mr Leigh Hunter wasconvicted of five charges and sentenced to 11 months' home detention. Mr ShaneHunter was convicted of nine charges and sentenced to 22 and a half months'imprisonment.1[3] Both appeal conviction.2 Mr Leigh Hunter attacks the drafting of the chargesand the conduct of his trial counsel, alleging instructions were not followed andwitnesses were not called. He seeks to adduce what is said to be fresh evidence, aimedat showing his original ownership of the contested tools. Both appellants also arguethe verdicts were unreasonable, and the police investigation and subsequentnon-retention of exhibits was flawed in a manner giving rise to a miscarriage of justice.[4] Mr Shane Hunter's appeal was filed 13 days out of time. Mr Leigh Hunter'sappeal was filed 35 days out of time. The delays are not significant and have causedno prejudice. We grant the required extensions of time.Evidence on appeal[5] The evidence on appeal falls into three categories.1 He was given leave to apply for home detention. See R v Hunter [2018] NZDC 22664 [Sentencingnotes] at [128].2 Appeals against sentence were abandoned by each appellant.Trial counsel error evidence[6] First, there is the evidence of Mr Leigh Hunter supporting his allegation of trialcounsel error. In particular he alleges his trial counsel did not cross-examine thecomplainants on the differences between items they reported as stolen and items theyclaimed as being theirs. He also complains, more forcefully, that he had advised hislawyer of 15 witnesses who could support his defence, but despite instructions that hewished to call them, none were contacted by trial counsel or called to give evidence.[7] This evidence is admissible under r 12A of the Court of Appeal (Criminal)Rules 2001, but we must state at once that we did not find Mr Hunter's evidencecredible. Mr Hunter was by turns truculent and evasive, regardless of whether he wasbeing cross-examined by Ms Hoskin or re-examined by his own counsel,Mr Mansfield. Specifically, we find he did not give trial counsel a list of 15 witnessesas he asserts, and in that respect we accept the contrary evidence of trial counsel,Mr Scott and Ms Oxnam. The only name given of a potential witness whose evidencewe have been able to evaluate was that of a Mr Birdsall. We will return to him later.3Fresh evidence — receipts[8] Secondly, Mr Leigh Hunter deposes that he had located further receipts, whichhe sought to produce, supporting his evidence that he owned particular items.[9] Leave to adduce this evidence is declined. The receipts evidence is not fresh,in the sense that it could have been produced at trial. Indeed, trial counsel had beenasking for it, had been told it existed, but were given only a selection of receipts whichdid not match the tools recovered. Nor are the "new" receipts cogent. Had they beenproduced at trial, they would have made no material difference: they could not bematched to the tools the subject of convictions.Fresh evidence — new witnesses[10] Thirdly, evidence was called from Alexander Birdsall, Christopher Krissansenand the appellants' cousin, Selwyn Kesha, to the effect that they had worked with3 At [13] below.Mr Leigh Hunter between 2012 and 2015, at various building sites, and saw toolscorresponding to the appearance of those the subject of charges in his lawfulpossession at that time. Evidence was also called from a David Taylor, who formerlyran a business that repaired, maintained and sold tools, and placed barcode stickers ontools once they had been repaired.[11] Having heard the evidence and Ms Hoskin's cross-examination, we declineleave for this evidence to be adduced on appeal. The evidence is not fresh: thesewitnesses could have been called at trial, but (apart from Mr Birdsall) were notidentified to counsel. Nor is the evidence cogent as to a defence not put.The proposition that the Hunters owned tools similar to those the subject of chargeswas not in issue. As Mr Leigh Hunter himself said in evidence, he ran 20-man teamsof building labourers in his capacity as a building contractor and builder's foreman.The evidence of these witnesses was not cogent that particular items claimed by thecomplainants had been acquired at an earlier stage by the Hunters. Generalisedevidence of lawful possession of similar items took the appellants nowhere because ofits lack of particularity.[12] It will suffice to cite evidence given by two of those witnesses.4 Mr Kesha, theappellants' cousin, purported to recognise a Stabila heavy duty spirit level5 asMr Leigh Hunter's property because (1) it had Mr Hunter's surname written on it witha marker pen and (2) he had been with Mr Hunter when he purchased it at a Bunningsstore (this being an enlargement on his affidavit evidence, which omitted thatsignificant detail). The former point is not cogent: when the name was written wasunproven. The latter point was inconsistent with Mr Leigh Hunter's own evidence(supported by a receipt) that he had bought the item from a Carters store at Panmure.[13] Mr Birdsall's evidence came down to the short point that he had left his Makita185 mm circular saw with Mr Leigh Hunter after he finished working for him.4 As for the other two witnesses, Mr Krisanssen was able only to say that he worked with similartools to those the subject of charges when he worked for Mr Leigh Hunter for five months in 2013–2014. Mr Taylor, the tools repairer, could only identify tagged tools as having been tested by hisbusiness, but not who had brought them to him, or when. He did not work exclusively for theappellants.5 The subject of charge 6 and said to be the property of a Mr Dylan Guitink.One such saw was the subject of charge 7.6 In evidence in chief, Mr Birdsall couldnot say whether the charged item was his saw or not. But under cross-examination byMs Hoskin, he had to accept it could not have been his saw: it had a different modelnumber to his one, a 5007MG; not a 5806B.Grouped charges[14] We turn to the first ground of appeal, which concerns the grouping of allegedlyreceived objects within each of charges 5, 6, 7 and 10. Mr Mansfield, for Mr LeighHunter, says that separate charges ought to have been laid in respect of individual toolsor the trial Judge should have given appropriate directions to the jury to requireunanimity on each tool.[15] It is helpful to list the charges and outcomes, substantially in the manner setout in Mr Mansfield's submissions:7Charge/complainantItems and location duringsearchDate itemsallegedly stolenLeighHunterShaneHunter1 – LivefirmConstructionHilti impact drill located in theboot of Shane Hunter's vehicle31 August 2014 Not guilty Not guilty2 – Joe'sSheetmetalMakita hammer drill set locatedin dining room1 June 2015 Not guilty Guilty3 – BenjaminHurdleyMakita drill set located in thekitchenBetween 15–16January 2016Guilty Guilty6 Said to be the property of a Mr Dylan Cossey.7 But using the exact charge terms for charges 5, 6, 7 and 10. We also add to it the dates the itemswere said in evidence to have been stolen. They were seized by the police from the appellants'property on 24 May 2016.4 – TimothyMcLean-WallaceEastwing hammer; set square;pop rivet gun; wurth cordlessdrill and charger; Lurkin linelaser; Atorn hacksaw; Irwin90 degree drill head; Makitadrill drives; and Allen key setslocated in Shane Hunter'swardrobeBetween 30–31March 2016Not guilty Guilty5 – Ashton Ball Milwaukee radio located inliving room, and Milwaukeesabre saw located in the diningroom22 April 2016 Guilty Guilty6 – DylanGuitinkStabila spirit level; Komelonfibreglass tape; Stanley socketset; Bahco screwdriver set;Paslode framing nail gun;Paslode nail gun; Makita skillsaw; and Makita planner locatedthroughout the addressBetween30 April–1 May2016Guilty Guilty7 – DylanCosseyMakitia nibbler tool; Boschmulti tool; Makita skill saw;Makita jig saw; Accurateinstruments tripod and laserlevel; DeWalt reciprocatingsaw; Bahco socket set; Twosmall sockets sets; Ramset gun;and Makita table saw locatedthroughout the address1 May 2016 Guilty Guilty8 – ThomasGallowayHard drive located on ShaneHunter's bed29 March 2016 Not guilty Guilty9 – DuncanCampbellLaptop and hard drive locatedon Shane Hunter's bed12 December2015Not guilty Guilty10 – BrettRhodesTwo Makita collated screw gunslocated in garage and hallwaycupboard; and a Matika routerlocated in Leigh Hunter'swardrobe5 May 2014 Guilty Guilty11 - StephenBedford(Withdrawn as witnessunavailable)Submissions[16] Mr Mansfield submitted the composite nature of the charges created the riskthat some jurors might have considered an appellant guilty in respect of some tools,but not all, and other jurors might have considered him guilty in respect of others.In other words, there may not have been jury unanimity on any particular single item.Items within each charge were located in different parts of the house, and differentexplanations applied to their individual ownership and acquisition: different positionswere advanced in relation to different tools which had been grouped together in asingle charge. The summing-up did not assist the jury on the need to be unanimous asto any single item within the charge having been stolen. The question trail given tothe jury simply referred to "the tools" collectively for each element of each charge.8[17] Mr Mansfield acknowledged that grouping might be appropriate in somecircumstances. But here it was not. After it was apparent that different explanationsmight apply, the charges should have been amended at the end of the trial so specificcharges applied to specific items. The charging offended s 17(1) of the CriminalProcedure Act 2011 by not relating to a "single offence".9[18] For the Crown, Ms Hoskin submitted there was no infringement of s 17 in theway in which the charges were drafted. Each charge was for receiving "propertystolen" from a complainant in a single transaction. That is, stolen at the same time,and from the same location. Given this, the "property" the subject of the charge didnot need to be split item by item. The identity of the property received was the first8 Or, in the case of charge 5 which concerned two items, it referred to them collectively as "theMilwaukee radio and Sabersaw".9 Mason v R [2010] NZSC 129, [2011] 1 NZLR 296.element of the charge; the second was the known exercise of control by the defendant,and the third, knowledge or recklessness as to whether the property received had beenstolen.10 Ms Hoskin relied on the judgment of the High Court in Marino v R.11A similar argument to the present one was rejected in that case, the Judge holding thata single charge could relate to multiple items, charges commonly being laid in thatmanner.12 It may be noted that the Crown in that case made a similar argument to thatadvanced by it here: that the underlying theft transaction was the same in relation toeach item charged: a single burglary involving the theft of four items, and possessionof those items by the defendant being ascertained later the same day.13[19] Ms Hoskin also argued that there was in any case no risk of a miscarriage ofjustice. It was unnecessary that the jury be unanimous as to specific items of propertyprovided they were unanimous (as they had to be, given the structuring of the questiontrail) that each appellant had received items and that those items collectively wereworth at least the threshold statutory value (the jury having convicted on that basis).14Analysis[20] This argument engages two distinct but related objections. The first is thepropriety of charging receiving by reference to a collective group of items of property,in terms of s 17 of the Criminal Procedure Act. The second, regardless of strictcompliance with s 17, is whether there is a real risk of a miscarriage of justice becausethe jury may have reasoned without unanimity in the way described in Mason v R.10 There is a fourth element: that the property has a value in excess of $1,000 if s 247(a) of theCrimes Act 1961 is to apply.11 Marino v R [2017] NZHC 1348.12 At [24], citing R v Birkinshaw [2016] NZHC 2257 where one charge was laid for a number ofdifferent items received over a period of a couple of months; Singh v Police [2016] NZHC 1739where two charges were laid which covered a range of electronics; and Andrews v Police [2015]NZHC 2496 where one charge was laid for the receipt of two items stolen in the same burglary.13 At [16].14 The schedule given to the jury (which was attached to the Crown submissions before this Court)listed individual values. So for charges 6 and 7 (which, although concerning property belongingto both Mr Guitink and Mr Cossey, involved breaking into a shared work vehicle on a weekend inApril–May 2016 and the theft of tools belonging to both — some three weeks before they werefound at the appellants' home) the charge 6 values totalled $1,290 and the charge 7 values $1,640–$1,790.[21] Section 17(1) states "[a] charge must relate to a single offence". The leadingcase, on which Mr Mansfield relies, is Mason v R.15 There the appellant was convictedon a charge that he "assaulted [X], a child by pulling his ear and punching him".16The Supreme Court held that the legislation indicated:17 the need for some flexibility. The essential requirement is that, ifparticular acts of alleged offending can sensibly be charged separately withoutundesirably lengthening the indictment (overcharging), then that should bedone. It is necessary that distinctly identifiable acts of alleged offending bethe subject of separate charges where the accused may be prejudiced either attrial or on sentencing if they are combined in a single count. On the one hand,the use of a multiplicity of counts is to be avoided where fewer would sufficefor the interests of justice. On the other, overly complex counts may prejudicethe defence or make it difficult to frame fair and accurate directions to the jury.In Mason the two alleged acts of assault were of a different character and seriousness,and a defence of parental control potentially lay in respect of one aspect of the charge,but not the other.[22] It follows that separate charges should be used when repetitive acts of allegedoffending can be distinguished from each other in a meaningful way.18 Or where theformulation is necessary to truly appreciate culpability for the purposes ofsentencing.19 However, the Supreme Court warned that its decision "should not betaken to be a signal to prosecutors that separate counts should routinely be included in[one] indictment" where it "may be neither practical nor desirable to prove separatecharges", such as, for example, when a series of blows has been struck in a fight.20[23] Turning then to these appeals, neither s 17(1) nor s 246(1) of the Crimes Act1961 requires a receiving charge to relate to a single item of property. Section 246(1)states:Every one is guilty of receiving who receives any property stolen or obtainedby any other imprisonable offence, knowing that property to have been stolenor so obtained, or being reckless as to whether or not the property had beenstolen or so obtained.15 Mason v R, above n 9.16 At [1].17 At [9]. Mason v R concerned s 329(6) of the Crimes Act, which s 17 replaced. Section 329(6)stated: "[e]very count shall in general apply only to a single transaction".18 At [10].19 At [12].20 At [15].It is not unusual for a single charge of this kind to include more than one item.21Ordinarily that course will only be taken where the items the subject of the chargewere "stolen from one property in a single incident".22 That is a desirable, but notinvariable, principle. The core of the offence is the act of receiving stolen property.The property received may or may not have come from a single theft; the thief mayhave combined the proceeds of multiple thefts. What is needed is a logical connectionbetween the property the subject of the charge. Undue consolidation exposes thedefendant to peril of a far higher penalty under s 247 of the Crimes Act: the maximumpenalty is seven years for property worth more than $1,000; if it does not exceed$1,000, it is one year, and below $500, it is three months.[24] The principle described in [23] was applied here. Where more than one itemof property was the subject of a charge, that property was allegedly the property of thesame owner, taken in the same theft. Section 17(1) was not offended when the chargeswere laid, or under the amended notices of charge filed subsequently. Nor are wesatisfied that the differences in available explanation offered in evidence required thecharges to be further amended, and split, during the trial. No application to that endappears to have been advanced at trial, despite what seems to have been extensivediscussion on the exact form the question trail should take. It follows that the onlypotentially sound objection here is the second one advanced, concerning juryunanimity. We turn to that now.[25] We turn now to unanimity of reasoning. The underlying principle is that a jurymust be agreed as to every essential element necessary to constitute the offence.23Those essential elements will normally find expression in the question trail, and did inthis case. For each charge in issue there were broadly three such elements requiringproof to the requisite standard:21 Marino v R, above n 11, at [24]. See also the cases listed at n 12.22 At [23].23 No issue of majority verdicts arose in this case, so we will retain the conventional "unanimity"expression. As to unanimity, see the (divided) decision of this Court in King v R [2011] NZCA664.(a) that the [property charged] was stolen (or obtained by anotherimprisonable offence) from [complainant] before [defendant] receivedit;(b) that [defendant] knew about and intended to exercise possession andcontrol over the [property charged]; and(c) that at the time of receiving the [property charged] [defendant] wasreckless as to whether it was stolen (or obtained by anotherimprisonable offence).[26] The Judge set a fourth element in the case of charges 6 and 7, because therewas a dispute as to the value of the property concerned, namely whether its value wasmore than $1,000.24 In putting that issue to the jury the Judge followed the approachapproved in this Court's decision in Cullen v R, on the basis that discrete penaltiesimplied discrete offences.25[27] The first essential element here was the receipt of property. As we have said,the property included in the charge may comprise more than one discrete object, justas an assault charged may comprise a series of blows (as the Supreme Court noted inMason v R). Subject to the direction given, a juror might be satisfied to the requisitestandard that all of the items received were stolen, some of them were, one of themwas or none of them were (likewise the blows said to constitute the assault). Giventhe verdicts, the fourth option may be discounted, so we focus on the other threepossibilities.[28] We accept a theoretical possibility that some jurors, at least on this element,might have been satisfied to the requisite standard that some of the items withincharges 5, 6, 7 and 10 were stolen, whereas other jurors might have been satisfied thatother, different items in those charges were stolen. However, the real question here is24 The Judge did so because of s 247 of the Crimes Act, which we discuss at [23].25 Cullen v R [2012] NZCA 413 at [17], following R v Koura [1996] 2 NZLR 9 (CA). A subsequentdecision of this Court, Marino v R [2017] NZCA 594 — an unsuccessful application for leave toappeal from the High Court decision referred to at n 11 — suggested otherwise at [5]–[7], but thepanel there does not seem to have been referred to the prior decisions of this Court.whether there is a realistic prospect that a miscarriage of justice has occurred becausethe summing-up may have permitted jurors to reason inconsistently, relying ondifferent property items for different elements (or limbs of the question trail).26 Weare satisfied that there is not.[29] Rather, we think it vanishingly unlikely that jurors would have reasoned in soundisciplined and inconsistent a manner. Working their way through the question trailin a logical order, they would have started with three charges each concerning a singletool. Charge 4 was the first charge involving a group of tools, said to be stolen froma Mr McLean-Wallace and found in a part of the house more particularly occupied byMr Shane Hunter.27 On this charge, the prosecutor said in closing:It's worth noting here that the Crown doesn't need to prove the charge inrelation to every single tool that's listed. The charge is that each of the Huntersreceived stolen tools valued at no more than $500. The tools are listed asparticulars of the charge, but all you need to be satisfied is that the defendantsreceived stolen tools that belonged to Mr McLean-Wallace. You don't needto be satisfied for each and every one of the tools which are listed.[30] Although the summing-up did not refer to this aspect of the argument (simplyreferring to "the tools" collectively), we do not think there is any realistic prospectjurors would have individually analysed the elements of charge 4 by reference todifferent subsets of the particularised items. We do not think the jurors needed to beinstructed to reason reductively, that is, funnelling a perhaps shrinking subset of thetools down from element (or question) 1 to element (or question) 2, and so forth.Rather, that is simply what they would, collectively, have done. We see no realisticprospect that they would have worked in any other way.[31] Charges 5 and 10 concerned two and three items of property only, respectively.No distinct explanation was suggested for them: Mr Shane Hunter said in evidencehe had been given both items in charge 5. He claimed ownership of one of the itemsin charge 10; Mr Leigh Hunter asserted ownership in relation to the other two. Thequestion trail refers to the items in each charge, conjunctively. The directions givenrefer throughout to the charged items together. Again, we discern no realistic prospect26 The essential focus is on realistic rather than merely theoretical possibilities: Wiley v R [2016]NZCA 28, [2016] 3 NZLR 1 at [28]. See also Haunui v R [2020] NZSC 153 at [67].27 Mr Shane Hunter was convicted on charge 4, but Mr Leigh Hunter was acquitted.of inconsistent reasoning, with some jurors reasoning by reference to one tool, andothers to another.[32] Charges 6 and 7 each involved a lengthy list of tools. The direction for charge 6included this passage:If, however, you find that the Crown has satisfied you that Mr Guitink didrecognise his tools, was able to say that when you've got a whole lot of toolstogether, you know your tools and pick them out, then you will answer "Yes"and go on to question 2. You may find that for many of the tools for question 2Mr Shane Hunter has exercised some ownership. Mr Leigh Hunter hasexercised some ownership as well and so you may find that for some of thesetools, each Hunter knew about and intended to exercise possession and controlover the tools.[33] Obviously that passage invites discrimination, to an extent. Jurors were invitedby this, and by question 1 in the trail, to decide what tools had been stolen fromMr Guitink. Having done so, they needed to consider differences and defences inrelation to knowledge, control and recklessness as to ownership. Correctly followed(and we see no basis to believe the jury did otherwise), the analysis would funnel downfrom question to question, with tools potentially being eliminated along the way as thejury collectively considered ownership, knowledge, control and recklessness.That course would then have been reinforced in relation to these two charges becausethe fourth question posed (in relation to those charges alone) was whether the value of"the tools" was more than $1,000. Necessarily the jury must then have looked, inrelation to each defendant, at what property collectively met the three prior questionsto the required standard, and then whether it met the value threshold for the charge.It is also highly unlikely that having taken that approach in relation to those twocharges, they would have proceeded otherwise in relation to other charges.[34] We are therefore satisfied that the summing-up, while spare in directing howto deal with multiple particularised items of property, did not give rise to a miscarriageof justice by reason of inconsistent reasoning.Trial counsel error[35] We can be brief on this challenge. It was advanced only by Mr Leigh Hunter;Mr Mackey could hardly advance that argument for Mr Shane Hunter given he hadbeen trial counsel for him also.[36] Mr Leigh Hunter's argument essentially fails on the facts, with the failure ofthe evidence advanced by him. Most of that evidence lacked freshness and cogency,and was excluded for the reasons given above.28 The remaining evidence of Mr LeighHunter, ultimately admitted on the basis of trial counsel error, lacked credibility.We note the trial Judge formed the same view about Mr Leigh Hunter's evidence attrial, describing for instance his attempt to explain away the presence of thecomplainant Mr Hurdley's telephone number on the exterior of a drill set Mr Hunterhad claimed was a gift left to him by a Mr Headley, as "palpably false".29 The samemay be said of Mr Hunter's efforts on the same subject before us. It was a spectacularown goal in terms of credibility.[37] We have rejected already evidence to the effect that trial counsel failed to callwitnesses.30 We likewise reject complaints that trial counsel failed to pursue theexistence of receipts. Rather, we find they had sought them, but Mr Leigh Hunterfailed to produce them. Given their lack of cogency, they would not have assisted himanyway.31[38] That leaves very little to discuss on the trial counsel error ground.The remaining complaint was that trial counsel failed adequately to cross-examinecomplainants as to their assertions of ownership. That is not our appreciation of theevidence, and the varying verdicts entered suggest it was not the jury's either.As Ms Hoskin put it, the complainants were robustly challenged and the jury was leftin no doubt that the defence position was that the majority of the tools belonged to theHunter brothers and were claimed by the complainants either dishonestly or in error.28 See [8]–[13] above.29 Sentencing notes, above n 1, at [18].30 See [7] and [11] above.31 See [9] above.In any event, cross-examination is an area where trial counsel must be givensubstantial latitude, free of wise-after-the-event repentance and reassessment.32Other grounds of appeal[39] The two remaining grounds of appeal occupied little time in oral argument, andwe need deal with them only briefly. The first concerned the reasonableness of theverdicts; the second the fact the police had returned the allegedly stolen property topersons claiming ownership, meaning the property could not be inspected by defencecounsel.Unreasonable verdicts?[40] The essence of this argument in fact is that the Judge was wrong not to grantthe appellants' argument under s 147 of the Criminal Procedure Act for dismissal ofthe charges at the end of the Crown case. This argument was not pursued with vigour.We need say no more than that it is plain the Crown case by its conclusion was not sodefective that no properly directed jury could convict. Rather, issues as to possessionwere a matter for due direction and assessment by the jury. Again, the discriminatingverdicts entered suggest the jury did just that. They did not stop with the simple, buterroneous, proposition that possession by one in a home jointly occupied meantpossession by both.Police investigation and non-retention of exhibits[41] The police investigative procedure, in calling for "owners" to claim itemsseized, may certainly be criticised. It invited fraud. The return of the items claimedto their alleged owners, and the retention only of partial photographic records, createduncertainties for both sides: the complainant Mr Cossey, for instance, could not pointto the name he alleged he had engraved on a particular item in the only photographsavailable.32 Loffley v R [2013] NZCA 579 at [53]. See also Hall v R [2015] NZCA 403, [2018] 2 NZLR 26at [75].[42] The original items remained "exhibits" for the purposes of the CriminalDisclosure Act 2008, being an "object of any kind that is capable of being producedas evidence on behalf of the prosecutor".33 Some potential exhibits of course aremanifestly incapable of production in court, such as a motor vehicle, boat or horse.Here, these items were trade tools, needed by their owners in their daily business. It isnot altogether surprising, therefore, that the tools were returned to those who claimedthem.[43] It is not asserted for the appellants that the original items could not have beenretrieved for their inspection, or that the police failed to do so in response to request,if request had been made under s 19 of the Criminal Disclosure Act. Plainly the failureof the police to protect the integrity of such exhibits by returning them was a point offorensic value. But it is not fatal, given the prosecution proceeded with photographicevidence, rather than the original items, as it was entitled to do. What has not beenshown by the appellants is the likelihood of a miscarriage of justice as a result of theprocess followed with these exhibits.34 Rather, trial counsel exploited the uncertaintiesand potential for intervening fraud (for example, by complainants addingidentification marks post-release by the police) astutely enough against thecomplainants in cross-examination. To the extent that remaining uncertainties mayinstead have been resolved in favour of the appellants (for example, on the testingtags), neither an application to produce the exhibits, nor any material potentialdifference to outcome, has been demonstrated.Result[44] The applications for extension of time are granted.[45] The application to adduce fresh evidence on appeal is declined.[46] The appeals against conviction are dismissed.33 Criminal Disclosure Act 2008, s 6(1).34 Criminal Procedure Act 2011, s 232(2)(c).[47] On 28 June 2019, Mr Leigh Hunter was granted bail pending determination ofhis appeal.35 Resumption of his sentence should his appeal be dismissed was notaddressed before us. He is to appear before the District Court at Auckland onWednesday 24 March 2021 at 11am to determine resumption of his original sentence.Solicitors:Crown Law Office, Wellington for Respondent35 Hunter v R [2019] NZCA 272 [Bail judgment].