IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY
CRI-2010-485-11

CHRISTOPHER WHITHAM
Appellant

THE NEW ZEALAND POLICE

Respondent

Hearing: 30 March 2010

Counsel: Mr Whitham in Person

M Snape for Respondent

Judgment: 1 April 2010

RESERVED JUDGMENT OF JOSEPH WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment

with the delivery time of 3pm on the 6th April 2010.

[1] The appellant, Christopher Whitham, appeals against a conviction in the

District Court for theft under s 223(b) of the Crimes Act.

[2] The case arises out of an agreement for the sale and purchase of two motor
vehicles, one an Audi the other a Mazda. The transaction or transactions (whether
there was one or two of them was a material issue) occurred between three parties all
known to each other. They were the appellant who originally owned the Mazda,
Ms Tyndall who owned the Audi, and Ms Davies who was the end purchaser of the

WHITHAM V THE NEW ZEALAND POLICE HC WN CRI-2010-485-11 [1 April 2010]

Mazda. The result of the arrangement was that the appellant acquired the Audi and
Ms Davies the Mazda.

[3] The prosecution case was that the appellant acquired the Audi from
Ms Tyndall in exchange for his Mazda plus $800 cash. The prosecution said
Ms Tyndall then on-sold the car immediately to Ms Davies. Ms Davies agreed to
pay Ms Tyndall $1350 by weekly payments to Ms Tyndall’s Farmer’s account.
These payments relieved Ms Tyndall of the obligation to pay off some furniture she
had acquired so, it was said, the arrangement suited both sides.

[4] The appellant argued that Ms Tyndall was not the go-between as suggested.
He said that he sold his Mazda directly to Ms Davies. The payment arrangement, in
his argument, was that Ms Davies was to redirect the money she ow the appellant to
Ms Tyndall instead. This meant that Ms Davies was in effect paying off on behalf of
the appellant what he owed on the Audi.

[5] Five months later the Audi’s engine blew up. The appellant took his
grievance to Ms Tyndall but she refused to accept any responsibility. The appellant
then went to Ms Davies who, as I have said, now owned the appellant’s Mazda. He
said to Ms Davies that she had three options:

(a) stop paying Ms Tyndall and redirect the payments to the appellant;

(b) return the Mazda to him and ask Ms Tyndall for her (Ms Davies’)
money back; or

(c) retain the car and deal with the matter in the Disputes Tribunal.

[6] On 10 May the appellant took possession of the Mazda. The prosecution said
that he intimidated Ms Davies and that she never agreed to give the car up. The
appellant on the other hand alleged that Ms Davies gave him the keys as an
indication that she had taken the second option that is she agreed to return the car to
him.

[7] That same evening the appellant reregistered the car in his name.
[8] The appellant said that he went to the police on 11 May to obtain advice
about his right to repossess the Mazda. There is a job sheet available for that
exchange. The appellant says that he was advised of what he should do but the job
sheet recorded by Sergeant Lenihan makes it clear that he was advised he could not
repossess the vehicle and that the matter would have to go to the “Small Claims
Court”.

[9] The case, both at first instance and on appeal, turned on whether the appellant
had a claim of right - that is whether he believed either that Ms Davies consented to
him retaking possession or, that for some other reason he was entitled to possession.

[10] I confess that there are some inconsistencies in the detail of the prosecution
case. The nature of these transactions between the three acquaintances is not crystal
clear. Ms Tyndall never registered herself as owner of the Mazda before onselling,
and even after the transaction Ms Davies accepted that the appellant was within his
rights to remove an alarm from the vehicle. Strangely, the appellant still has the
vehicle, Ms Davies having made a successful insurance claim for the loss of it.

[11] In the end however, it is clear to me that these are not material
inconsistencies. Her Honour Judge Johnston in a lengthy judgment laid out the
evidence given by Ms Davies and Ms Tyndall, as well as that of the appellant. In 12
considered paragraphs Her Honour analysed those differences, reached conclusions
on witness credibility on the basis of what she saw and heard in the two day hearing,
and assessed what she saw to be internal inconsistencies in the appellant’s version of
the facts. She disbelieved the appellant and accepted that the facts as set out by
Ms Tyndall and Ms Davies were established beyond a reasonable doubt.

[12] Having read that analysis carefully, I am satisfied that it cannot be faulted.
Indeed even if I had taken a different view on reading the notes of evidence (and I
have not) findings of fact and credibility are entirely for the trial Judge and it would
be quite inappropriate for me to revisit them.
[13] The appeal must inevitably be dismissed accordingly.

“Joseph Williams J”

Solicitors:
C Whitham, 32 Victoria Street, Lower Hutt
Luke Cunningham & Clere, PO Box 10-357, Wellington