New Zealand Police v Higginson 2018 NZDC 26768

Published 12 August 2019

Judge alone trial — receiving stolen goods — avocados — recklessness — beyond reasonable doubt — Crimes Act 1961, s 246 — Evidence Act 2006, subs 122(5) — R v Kennedy [2001] 1 NZLR 314 — Cullen v R [2014] NZCA. The defendant faced a representative charge of receiving stolen avocados having been reckless as to whether the avocados had been stolen. It was alleged that on multiple occasions over a three month period she had received carloads of avocados from the person who had stolen them from orchards, at a grossly undervalued price. As it was a representative charge, the prosecution only had to prove this had occurred on one occasion, beyond reasonable doubt. The avocado thief gave evidence for the prosecution, giving details of times, locations and amounts of avocados he sold to the defendant. His mother gave evidence she saw this occur on one occasion. Text messages also provided proof that the defendant had purchased avocados from the thief. The main issue was whether it could be proven beyond a reasonable doubt that the defendant had been reckless as to whether the avocados she was receiving were stolen. In the normal run of receiving cases, a prosecutor often relies on inferences from circumstances to establish a defendant was reckless as to the possibility the property had been stolen. Common features include purchase at gross undervalue, secrecy in the receiving, receipt at unusual time or place, or in an unusual way, concealment of the goods, removal of identification marks or lying statements as to the source of goods and the date of acquisition. One strand of evidence may be insufficient to establish the recklessness element, a combination of them may be sufficient to establish recklessness beyond reasonable doubt. The Judge referred to the sheer quantity of the avocados sold by the thief to the defendant as a regular supplier albiet over a brief timeframe. There were no receipts between the two of them. The Judge inferred the changes in delivery locations were in the main designed to keep the transactions out of public view. The defendant also purchased the avocados at a grossly undervalued price. The Judge found that at the time the defendant acquired possession of the stolen avocados she was reckless as to whether those avocados were stolen. Judgment Date: 21 December 2018.