IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA770/2018
CA26/2019
 [2021] NZCA 75

	
BETWEEN	
SHANE ARRON HUNTER
First Appellant

LEIGH JOHN HUNTER
Second Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
11 and 12 November 2020	

Court:	
Kós P, Thomas and Gendall JJ	

Counsel:	
J W Mackey for First Appellant
R M Mansfield and H R Smith for Second Appellant
E J Hoskin for Respondent	

Judgment:	
22 March 2021 at 9 am	

JUDGMENT OF THE COURT

A	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 on Wednesday 24 March 2021 at 11am to determine resumption of his original 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 of building construction tools.  The Hunters claimed the tools were theirs (or had been left at the house by other persons).  Taking a contrary view, the police contacted persons who had made complaints about tools that had been stolen in the Auckland area.  They also placed an advertisement on a builders internet site.  They also telephoned a cellphone number found on one of the tools.  That call was answered by a Mr Benjamin Hurdley.  He said the tool was indeed his, and had been stolen from his vehicle in January 2016.  Other persons also came forward and claimed tools as being theirs, having been stolen between 2014 and 2016.  
[2]	Both brothers were charged with receiving stolen goods.  They stood trial before Judge Ryan and a jury in the District Court at Auckland.  Mr Leigh Hunter was convicted of five charges and sentenced to 11 months’ home detention.  Mr Shane Hunter was convicted of nine charges and sentenced to 22 and a half months’ imprisonment.
[3]	Both appeal conviction.  Mr Leigh Hunter attacks the drafting of the charges and the conduct of his trial counsel, alleging instructions were not followed and witnesses were not called.  He seeks to adduce what is said to be fresh evidence, aimed at showing his original ownership of the contested tools.  Both appellants also argue the verdicts were unreasonable, and the police investigation and subsequent non‑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’s appeal was filed 35 days out of time.  The delays are not significant and have caused no prejudice.  We grant the required extensions of time. 
Evidence on appeal
[5]	The evidence on appeal falls into three categories.  
Trial counsel error evidence
[6]	First, there is the evidence of Mr Leigh Hunter supporting his allegation of trial counsel error.  In particular he alleges his trial counsel did not cross-examine the complainants on the differences between items they reported as stolen and items they claimed as being theirs.  He also complains, more forcefully, that he had advised his lawyer of 15 witnesses who could support his defence, but despite instructions that he wished 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 evidence credible.  Mr Hunter was by turns truculent and evasive, regardless of whether he was being 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 witnesses as 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 evidence we have been able to evaluate was that of a Mr Birdsall.  We will return to him later.
Fresh evidence — receipts
[8]	Secondly, Mr Leigh Hunter deposes that he had located further receipts, which he 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 been asking for it, had been told it existed, but were given only a selection of receipts which did not match the tools recovered.  Nor are the “new” receipts cogent.  Had they been produced at trial, they would have made no material difference: they could not be matched to the tools the subject of convictions.  
Fresh evidence — new witnesses
[10]	Thirdly, evidence was called from Alexander Birdsall, Christopher Krissansen and the appellants’ cousin, Selwyn Kesha, to the effect that they had worked with Mr Leigh Hunter between 2012 and 2015, at various building sites, and saw tools corresponding to the appearance of those the subject of charges in his lawful possession at that time.   Evidence was also called from a David Taylor, who formerly ran a business that repaired, maintained and sold tools, and placed barcode stickers on tools once they had been repaired.
[11]	Having heard the evidence and Ms Hoskin’s cross-examination, we decline leave for this evidence to be adduced on appeal.  The evidence is not fresh:  these witnesses could have been called at trial, but (apart from Mr Birdsall) were not identified 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 charges was not in issue.  As Mr Leigh Hunter himself said in evidence, he ran 20-man teams of 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 the complainants had been acquired at an earlier stage by the Hunters.  Generalised evidence of lawful possession of similar items took the appellants nowhere because of its lack of particularity.
[12]	It will suffice to cite evidence given by two of those witnesses.  Mr Kesha, the appellants’ cousin, purported to recognise a Stabila heavy duty spirit level as Mr Leigh Hunter’s property because (1) it had Mr Hunter’s surname written on it with a marker pen and (2) he had been with Mr Hunter when he purchased it at a Bunnings store (this being an enlargement on his affidavit evidence, which omitted that significant detail).  The former point is not cogent:  when the name was written was unproven.  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 Makita 185 mm circular saw with Mr Leigh Hunter after he finished working for him.  One such saw was the subject of charge 7.  In evidence in chief, Mr Birdsall could not say whether the charged item was his saw or not.  But under cross-examination by Ms Hoskin, he had to accept it could not have been his saw:  it had a different model number to his one, a 5007MG; not a 5806B.    
Grouped charges
[14]	We turn to the first ground of appeal, which concerns the grouping of allegedly received objects within each of charges 5, 6, 7 and 10.  Mr Mansfield, for Mr Leigh Hunter, says that separate charges ought to have been laid in respect of individual tools or the trial Judge should have given appropriate directions to the jury to require unanimity on each tool.  
[15]	It is helpful to list the charges and outcomes, substantially in the manner set out in Mr Mansfield’s submissions:

Charge/ complainant	Items and location during search	Date items allegedly stolen	Leigh Hunter	Shane Hunter	
1 – Livefirm Construction	Hilti impact drill located in the boot of Shane Hunter’s vehicle	31 August 2014	Not guilty	Not guilty	
2 – Joe’s Sheetmetal	Makita hammer drill set located in dining room	1 June 2015	Not guilty	Guilty	
3 – Benjamin Hurdley	Makita drill set located in the kitchen	Between 15–16 January 2016	Guilty	Guilty	

4 – Timothy McLean- Wallace	Eastwing hammer; set square; pop rivet gun; wurth cordless drill and charger; Lurkin line laser; Atorn hacksaw; Irwin 90 degree drill head; Makita drill drives; and Allen key sets located in Shane Hunter’s wardrobe	Between 30–31 March 2016	Not guilty	Guilty	
5 – Ashton Ball	Milwaukee radio located in living room, and Milwaukee sabre saw located in the dining room	22 April 2016	Guilty	Guilty	
6 – Dylan Guitink
	Stabila spirit level; Komelon fibreglass tape; Stanley socket set; Bahco screwdriver set; Paslode framing nail gun; Paslode nail gun; Makita skill saw; and Makita planner located throughout the address	Between 30 April–1 May 2016	Guilty	Guilty	
7 – Dylan Cossey
	Makitia nibbler tool; Bosch multi tool; Makita skill saw; Makita jig saw; Accurate instruments tripod and laser level; DeWalt reciprocating saw; Bahco socket set; Two small sockets sets; Ramset gun; and Makita table saw located throughout the address	1 May 2016	Guilty	Guilty	
8 – Thomas Galloway	Hard drive located on Shane Hunter’s bed	29 March 2016	Not guilty	Guilty	
9 – Duncan Campbell	Laptop and hard drive located on Shane Hunter’s bed	12 December 2015	Not guilty	Guilty	

10 – Brett Rhodes	Two Makita collated screw guns located in garage and hallway cupboard; and a Matika router located in Leigh Hunter’s wardrobe	5 May 2014	Guilty	Guilty	
11 - Stephen Bedford	(Withdrawn as witness unavailable)				
Submissions
[16]	Mr Mansfield submitted the composite nature of the charges created the risk that 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 different explanations applied to their individual ownership and acquisition:  different positions were advanced in relation to different tools which had been grouped together in a single charge.  The summing-up did not assist the jury on the need to be unanimous as to any single item within the charge having been stolen.  The question trail given to the jury simply referred to “the tools” collectively for each element of each charge.  
[17]	Mr Mansfield acknowledged that grouping might be appropriate in some circumstances.  But here it was not.  After it was apparent that different explanations might apply, the charges should have been amended at the end of the trial so specific charges applied to specific items.  The charging offended s 17(1) of the Criminal Procedure Act 2011 by not relating to a “single offence”.  
[18]	For the Crown, Ms Hoskin submitted there was no infringement of s 17 in the way in which the charges were drafted.  Each charge was for receiving “property stolen” 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 did not need to be split item by item.  The identity of the property received was the first 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 been stolen.  Ms Hoskin relied on the judgment of the High Court in Marino v R.  A similar argument to the present one was rejected in that case, the Judge holding that a single charge could relate to multiple items, charges commonly being laid in that manner.  It may be noted that the Crown in that case made a similar argument to that advanced by it here:  that the underlying theft transaction was the same in relation to each item charged:  a single burglary involving the theft of four items, and possession of those items by the defendant being ascertained later the same day.
[19]	Ms Hoskin also argued that there was in any case no risk of a miscarriage of justice.  It was unnecessary that the jury be unanimous as to specific items of property provided they were unanimous (as they had to be, given the structuring of the question trail) that each appellant had received items and that those items collectively were worth at least the threshold statutory value (the jury having convicted on that basis).
Analysis
[20]	This argument engages two distinct but related objections.  The first is the propriety 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 strict compliance with s 17, is whether there is a real risk of a miscarriage of justice because the jury may have reasoned without unanimity in the way described in Mason v R.  
[21]	Section 17(1) states “[a] charge must relate to a single offence”.  The leading case, on which Mr Mansfield relies, is Mason v R.  There the appellant was convicted on a charge that he “assaulted [X], a child … by pulling his ear and punching him”.  The Supreme Court held that the legislation indicated: 
… the need for some flexibility. The essential requirement … is that, if particular acts of alleged offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging), then that should be done.  It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial 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 suffice for the interests of justice.  On the other, overly complex counts may prejudice the 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 alleged offending can be distinguished from each other in a meaningful way.  Or where the formulation is necessary to truly appreciate culpability for the purposes of sentencing.  However, the Supreme Court warned that its decision “should not be taken 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 separate charges”, such as, for example, when a series of blows has been struck in a fight. 
[23]	Turning then to these appeals, neither s 17(1) nor s 246(1) of the Crimes Act 1961 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 obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained. 
It is not unusual for a single charge of this kind to include more than one item.   Ordinarily that course will only be taken where the items the subject of the charge were “stolen from one property in a single incident”.  That is a desirable, but not invariable, 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 may have combined the proceeds of multiple thefts.  What is needed is a logical connection between the property the subject of the charge.  Undue consolidation exposes the defendant to peril of a far higher penalty under s 247 of the Crimes Act:  the maximum penalty 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 item of property was the subject of a charge, that property was allegedly the property of the same owner, taken in the same theft.  Section 17(1) was not offended when the charges were laid, or under the amended notices of charge filed subsequently.  Nor are we satisfied that the differences in available explanation offered in evidence required the charges to be further amended, and split, during the trial.  No application to that end appears to have been advanced at trial, despite what seems to have been extensive discussion on the exact form the question trail should take.  It follows that the only potentially sound objection here is the second one advanced, concerning jury unanimity.  We turn to that now. 
[25]	We turn now to unanimity of reasoning.  The underlying principle is that a jury must be agreed as to every essential element necessary to constitute the offence.  Those essential elements will normally find expression in the question trail, and did in this case.  For each charge in issue there were broadly three such elements requiring proof to the requisite standard:
(a)	that the [property charged] was stolen (or obtained by another imprisonable offence) from [complainant] before [defendant] received it;
(b)	that [defendant] knew about and intended to exercise possession and control over the [property charged]; and
(c)	that at the time of receiving the [property charged] [defendant] was reckless as to whether it was stolen (or obtained by another imprisonable offence).
[26]	The Judge set a fourth element in the case of charges 6 and 7, because there was a dispute as to the value of the property concerned, namely whether its value was more than $1,000.  In putting that issue to the jury the Judge followed the approach approved in this Court’s decision in Cullen v R, on the basis that discrete penalties implied discrete offences.
[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, just as an assault charged may comprise a series of blows (as the Supreme Court noted in Mason v R).  Subject to the direction given, a juror might be satisfied to the requisite standard that all of the items received were stolen, some of them were, one of them was or none of them were (likewise the blows said to constitute the assault).  Given the verdicts, the fourth option may be discounted, so we focus on the other three possibilities.  
[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 within charges 5, 6, 7 and 10 were stolen, whereas other jurors might have been satisfied that other, different items in those charges were stolen.  However, the real question here is whether there is a realistic prospect that a miscarriage of justice has occurred because the summing-up may have permitted jurors to reason inconsistently, relying on
different property items for different elements (or limbs of the question trail).  We are satisfied that there is not.  
[29]	Rather, we think it vanishingly unlikely that jurors would have reasoned in so undisciplined and inconsistent a manner.  Working their way through the question trail in a logical order, they would have started with three charges each concerning a single tool.  Charge 4 was the first charge involving a group of tools, said to be stolen from a Mr McLean-Wallace and found in a part of the house more particularly occupied by Mr Shane Hunter.  On this charge, the prosecutor said in closing:
It’s worth noting here that the Crown doesn’t need to prove the charge in relation to every single tool that’s listed.  The charge is that each of the Hunters received stolen tools valued at no more than $500.  The tools are listed as particulars of the charge, but all you need to be satisfied is that the defendants received stolen tools that belonged to Mr McLean-Wallace.  You don’t need to 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 (simply referring to “the tools” collectively), we do not think there is any realistic prospect jurors would have individually analysed the elements of charge 4 by reference to different subsets of the particularised items.  We do not think the jurors needed to be instructed to reason reductively, that is, funnelling a perhaps shrinking subset of the tools 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 realistic prospect 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 evidence he had been given both items in charge 5.  He claimed ownership of one of the items in charge 10;  Mr Leigh Hunter asserted ownership in relation to the other two.  The question trail refers to the items in each charge, conjunctively.  The directions given refer throughout to the charged items together.  Again, we discern no realistic prospect of inconsistent reasoning, with some jurors reasoning by reference to one tool, and others to another.
[32]	Charges 6 and 7 each involved a lengthy list of tools.  The direction for charge 6 included this passage:
If, however, you find that the Crown has satisfied you that Mr Guitink did recognise his tools, was able to say that when you’ve got a whole lot of tools together, 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 2 Mr Shane Hunter has exercised some ownership.  Mr Leigh Hunter has exercised some ownership as well and so you may find that for some of these tools, each Hunter knew about and intended to exercise possession and control over the tools. 
[33]	Obviously that passage invites discrimination, to an extent.  Jurors were invited by this, and by question 1 in the trail, to decide what tools had been stolen from Mr Guitink.  Having done so, they needed to consider differences and defences in relation 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 down from question to question, with tools potentially being eliminated along the way as the jury collectively considered ownership, knowledge, control and recklessness.  That course would then have been reinforced in relation to these two charges because the 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, in relation to each defendant, at what property collectively met the three prior questions to 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 two charges, they would have proceeded otherwise in relation to other charges. 
[34]	We are therefore satisfied that the summing-up, while spare in directing how to deal with multiple particularised items of property, did not give rise to a miscarriage of 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 had been trial counsel for him also.  
[36]	Mr Leigh Hunter’s argument essentially fails on the facts, with the failure of the evidence advanced by him.  Most of that evidence lacked freshness and cogency, and was excluded for the reasons given above.  The remaining evidence of Mr Leigh Hunter, 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 at trial, describing for instance his attempt to explain away the presence of the complainant Mr Hurdley’s telephone number on the exterior of a drill set Mr Hunter had claimed was a gift left to him by a Mr Headley, as “palpably false”.  The same may be said of Mr Hunter’s efforts on the same subject before us.  It was a spectacular own goal in terms of credibility.
[37]	We have rejected already evidence to the effect that trial counsel failed to call witnesses.  We likewise reject complaints that trial counsel failed to pursue the existence of receipts.  Rather, we find they had sought them, but Mr Leigh Hunter failed to produce them.  Given their lack of cogency, they would not have assisted him anyway. 
[38]	That leaves very little to discuss on the trial counsel error ground.  The remaining complaint was that trial counsel failed adequately to cross-examine complainants as to their assertions of ownership.  That is not our appreciation of the evidence, 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 left in no doubt that the defence position was that the majority of the tools belonged to the Hunter brothers and were claimed by the complainants either dishonestly or in error.  In any event, cross-examination is an area where trial counsel must be given substantial latitude, free of wise-after-the-event repentance and reassessment.
Other grounds of appeal
[39]	The two remaining grounds of appeal occupied little time in oral argument, and we need deal with them only briefly.  The first concerned the reasonableness of the verdicts; the second the fact the police had returned the allegedly stolen property to persons claiming ownership, meaning the property could not be inspected by defence counsel.
Unreasonable verdicts?
[40]	The essence of this argument in fact is that the Judge was wrong not to grant the appellants’ argument under s 147 of the Criminal Procedure Act for dismissal of the 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 so defective that no properly directed jury could convict.  Rather, issues as to possession were a matter for due direction and assessment by the jury.  Again, the discriminating verdicts entered suggest the jury did just that.  They did not stop with the simple, but erroneous, proposition that possession by one in a home jointly occupied meant possession by both.
Police investigation and non-retention of exhibits
[41]	The police investigative procedure, in calling for “owners” to claim items seized, may certainly be criticised.  It invited fraud.  The return of the items claimed to their alleged owners, and the retention only of partial photographic records, created uncertainties for both sides:  the complainant Mr Cossey, for instance, could not point to the name he alleged he had engraved on a particular item in the only photographs available.  
[42]	The original items remained “exhibits” for the purposes of the Criminal Disclosure Act 2008, being an “object of any kind that is capable of being produced as evidence on behalf of … the prosecutor”.  Some potential exhibits of course are manifestly 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 is not altogether surprising, therefore, that the tools were returned to those who claimed them.
[43]	It is not asserted for the appellants that the original items could not have been retrieved 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 failure of the police to protect the integrity of such exhibits by returning them was a point of forensic value.  But it is not fatal, given the prosecution proceeded with photographic evidence, rather than the original items, as it was entitled to do.  What has not been shown by the appellants is the likelihood of a miscarriage of justice as a result of the process followed with these exhibits.  Rather, trial counsel exploited the uncertainties and potential for intervening fraud (for example, by complainants adding identification marks post-release by the police) astutely enough against the complainants in cross-examination.  To the extent that remaining uncertainties may instead have been resolved in favour of the appellants (for example, on the testing tags), neither an application to produce the exhibits, nor any material potential difference 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.
[47]	On 28 June 2019, Mr Leigh Hunter was granted bail pending determination of his appeal.  Resumption of his sentence should his appeal be dismissed was not addressed before us.  He is to appear before the District Court at Auckland on Wednesday 24 March 2021 at 11am to determine resumption of his original sentence. 

Solicitors: 
Crown Law Office, Wellington for Respondent