Holz v Lane
[2002] WASCA 164
•20 JUNE 2002
HOLZ -v- LANE [2002] WASCA 164
| Link to Appeal : | [2005] WASCA 40 [2005] WASCA 40 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 164 | |
| Case No: | SJA:1026/2001 | 5 JUNE 2002 | |
| Coram: | WHEELER J | 20/06/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RENEE PETER HOLZ RAYMOND JOHN LANE |
Catchwords: | Turns on own facts |
Legislation: | Fair Trading Act 1987 |
Case References: | Hoch v The Queen (1998) 165 CLR 292 Krakouer v The Queen (1998) 194 CLR 202 Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) ATPR 41-534 Steelfab Engineering Pty Ltd v Acme Group Pty Ltd & Anor [2000] WASC 198 Ting v Blanche (1993) 118 ALR 543 Jones v Dunkel (1959) 101 CLR 298 R v Boardman [1975] AC 421 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
RAYMOND JOHN LANE
Respondent
Catchwords:
Turns on own facts
Legislation:
Fair Trading Act 1987
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC
Respondent : Mr A E Woodcock
Solicitors:
Appellant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hoch v The Queen (1998) 165 CLR 292
Krakouer v The Queen (1998) 194 CLR 202
Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) ATPR 41-534
Steelfab Engineering Pty Ltd v Acme Group Pty Ltd & Anor [2000] WASC 198
Ting v Blanche (1993) 118 ALR 543
Case(s) also cited:
Jones v Dunkel (1959) 101 CLR 298
R v Boardman [1975] AC 421
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1 WHEELER J: The appellant was convicted on 29 January 2001 of five counts under the provisions of the Fair Trading Act 1987 which alleged that he had misled five young women, in somewhat different ways, as to the availability of employment as photographic models. In broad terms, the appellant was said to have run a photography business out of his private home in partnership with his wife. He ran it under two different names, one being "International Freelance Models Organisation". He promoted the business by issuing business cards and placing advertisements in telephone directories. The business cards were apparently distributed by his wife, who would speak to young women about their potential involvement in modelling. As a result, the appellant or his wife were approached by people personally interested, or interested on behalf of their children, in entering the modelling industry. The appellant would then offer a "test shot", which he said was to ascertain whether the person's photograph had "the look" that may attract employers. There was a charge for this shot. His Worship found this to be a somewhat superficial process. Once that process was completed (or, on occasion, skipped), the appellant would offer to compile a portfolio which involved the taking of photographs and in some cases the application of makeup and the undertaking of lessons apparently designed to enhance the experience of the young woman in the area of producing a good photographic result. A charge was of course made for the compiling of the portfolio. It was in the course of these activities that it is said that, in each case, the appellant engaged in conduct that was liable to mislead by making representations as to certain matters.
2 The matter has a long history. The relevant offences are alleged to have taken place in 1997 and 1998. The conviction, as I have noted, was in January 2001, and there was a considerable delay in getting the appeal to hearing. During the course of that process, all but two of the grounds of appeal have been abandoned.
3 The first of the remaining grounds of appeal complains that his Worship proceeded on the basis of the incorrect onus of proof. That ground arises because pursuant to s 9(2) of the Act, if the representations were as to "future matters", the appellant bore the onus of establishing that he had reasonable grounds to make those representations. It is submitted that the appellant's position at trial was that any representation he had made was with respect to the present availability of employment and either was true or that at least he had reasonable grounds for making it. His Worship did not expressly make a finding as to whether any of the representations were as to future matters, or whether they were as to the present availability of work (or perhaps as to the appellant's belief in the
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- availability of work). However, I accept the submission that his Worship must have acted upon the basis that the representations were representations as to future matters, since he employed the onus of proof appropriate to such matters. In his Worship's conclusions, he expressed himself as being satisfied beyond reasonable doubt that the appellant did make representations to each of the complainants about the availability of employment and as not being satisfied on the balance of probabilities that the appellant had reasonable grounds for making those representations.
4 The question of how the court is to distinguish between representations as to present and future matters, is discussed in the decision of Master Sanderson of Steelfab Engineering Pty Ltd v Acme Group Pty Ltd & Anor [2000] WASC 198. Relevant authorities bearing on this question are conveniently collected by the learned Master in his reasons in that case. It is apparent that a representation will often bear a dual aspect; that is it may be as to an event or conduct in the future and it may at the same time be as to a present matter - most usually, as to the present intention or state of mind of the representor. In distinguishing between representation as to present state of mind and as to a future matter, Hill J, in terms which have been generally accepted and which I would respectfully adopt, said the following:
"It will be readily apparent that a representation as to future conduct or a future event will generally imply (and sometimes explicitly state) that the maker of the representation was of a particular state of mind as to the future conduct or event as at the time the representation was made. A representation that a particular occupancy rate for a hotel might in the future be achieved, or, as alleged here, that a particular rent for nominated premises could be achieved in a future letting, impliedly involves a representation that the maker of the representation believed that the occupancy rate or rental could be achieved. It would be no less a representation as to the future by virtue of this implication. If the actual term of the representation is that the maker of the representation is of the view at the time that the occupancy rate or rental nominated could be achieved in the future, does that express statement turn a representation as to the future into a representation as to existing fact?
...
Whatever may be the case where there is an express representation as to the maker's state of mind concerning a
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- future matter, it is not, in my opinion, correct to treat a representation as to an event or conduct in the future, be that in the form of a prediction or otherwise, as not being a representation with respect to a future matter merely because it implies a representation as to the maker's state of mind. ...
A representation as to future rental, for example, will be a representation with respect to a future matter even if also, impliedly, a representation as to the existing state of mind of the maker."
(Ting v Blanche (1993) 118 ALR 543 at 552 – 553.)
5 The appellant also referred to Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) ATPR 41-534, a decision of Merkel J. At 42-817 of the report, his Honour characterised a representation which was to the effect that certain matters which were set out in a letter had led a party to believe that a well-managed franchise operation could achieve sales of specified figures. His Honour took the view that that was properly characterised as a statement as to present belief based on the grounds set out. His Honour referred particularly to the fact that in that case the grounds for the projections were expressly stipulated and an assessment of their reasonableness was left for evaluation by the representee. Those grounds were apparently matters of existing fact, able to be verified or otherwise. The appellant suggests that, in the present case, the representations made were as to the existence and intentions of existing potential employers and were capable of being then verified or otherwise by the various complainants.
6 As a practical matter, an ability to verify, or otherwise, a representation or a portion of the representation, at the time it is made, may assist in determining whether a representation is one of existing fact or as to future matters. However, as I have noted, in many cases the representation will bear more than one aspect. It is also to be noted that, unlike the position in Miba, the grounds upon which the various representations in this case were based were not communicated to the complainants; in some cases they were not communicated at all, and in other cases only in the most general of terms.
7 Turning to the particular representations in question, the appellant in the course of argument referred me to a variety of passages in the transcript, and his Worship in his reasons for decision summarised the evidence in detail. I do not think it is necessary for me to set out all that
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- material. At the conclusion of his Worship's reasons, he summarised in very brief terms the representations which he found were made in respect of each complainant. I think it is only necessary to set out those brief findings.
8 In respect of the complainant Wilson, the representation was that there was a modelling agency in America which wanted 14 girls from Australia for a one year modelling assignment in the United States. If finally selected, Wilson would travel to the United States towards the end of March 1998 and earn an estimated $250,000 per year. The work involved three days per week on the catwalk and two days per week as an actress on a TV production. His Worship expressly found that none of what was told to Wilson about that prospective employment was true. In relation to the complainant Lardi, Lardi and her mother were told that a client was interested in Lardi and needed a set of black and white photographs of her. The client was in America and Lardi would earn, if selected, US$240,000 for 12 months. The work would be modelling work and small TV roles. There were other details about chaperoning and escorting of Lardi on her flights to the United States. Again, his Worship found that none of what the appellant told Lardi about the prospective employment was true. In relation to the complainant Stemac, the appellant told her that he had a client who needed a topless model for a specific assignment in the future, posing with guns, in the Gibson Desert. His Worship found that this was not true. So far as the complainant Crockett was concerned, Holz represented to her and to her mother that there was work for her in the United States earning between US$280,000 and US$300,000. She was to be accommodated and chaperoned while working there. His Worship found that "None of that was true or even a possibility on what was known to Holz at the time." So far as Eaton was concerned, it was represented to her that there had been a positive response by a client in Greece who was interested in a cosmetic contract for her to work overseas for a period of eight weeks at $800 per day. His Worship found that that was not true.
9 It is apparent that in each of the representations to which I have referred, there was an element of representation as to present fact. That is, there was in each case apparently a representation that there was somewhere in existence an employer with the ability (and the interest) to offer work to the various complainants. There was also, it appears to me, a representation as to the appellant's state of mind; implicitly it seems to me there was a representation that he considered that there was a reasonable prospect that each complainant could obtain work of the kind described. However, it is my view that there was also in each case a clear
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- element of prediction or representation as to a future matter. Although it was said by the appellant to each of the complainants that there was no guarantee that she would be employed, it is my view that in each case there was a representation or prediction to the effect that it was probable that each complainant would at a future time be selected by an employer for work of the kind described. There was a representation that each employer would in the future select somebody and a prediction that the "somebody" selected would probably be the relevant complainant.
10 Those representations were in my view representations as to future matters. I should note, however, that even if that were not so, the application of the incorrect onus of proof would not necessarily lead to the result that the convictions must be quashed. A reversal of the onus of proof may in the usual case have this result, but it is not inevitable: Krakouer v The Queen (1998) 194 CLR 202 at 212; [1998] HCA 43 at [23]. In this case his Worship not only formed an unfavourable impression of the appellant's credit, but he went on in each case to find positively that there was no truth in the representations made and to find, in one case, that there was no reasonable ground for believing it to be true. Having regard to the nature of the representations in each case, it appears to me that a finding that there was no truth contained in the representation necessarily carries with it the finding that there was no reasonable ground for a belief in its truth. If that is so, there would be no reason to overturn the convictions based on this ground, even if the incorrect onus of proof were applied.
11 The second ground of appeal relates to the use made by his Worship of similar fact evidence. The five complaints were heard together. So far as the general evidence about the nature of the appellant's business was concerned, that was common to each of the complaints. The prosecution opening tended to suggest that the evidence of each complainant should be regarded as similar fact evidence in respect of other complainants. The prosecutor put to his Worship that there was a "chilling modus operandi ... replicated to a great degree with each of these five victims", and he went on to describe the appellant's "general approach" as involving an approach to a young woman, a request that they attend at the appellant's studios for the purposes of photographic shots and then the making of representations which varied somewhat in each case.
12 It appears in this case that in relation to some of the witnesses, his Worship had reservations about their credibility which were cured by the similarity which their accounts bore to accounts given by other witnesses whose evidence he accepted. His Worship's reasoning in respect of those
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- matters appears to have been based upon the "improbability of similar lies" (Hoch v The Queen (1998) 165 CLR 292 at 295 per Mason CJ, Wilson and Gaudron JJ). It is submitted that this use of the evidence was impermissible, in that there was a real possibility of concoction between the witnesses. Although no objection was taken to the trial of the five complaints together, and although no issue was taken before his Worship as to the possibility of concoction, it is submitted that nevertheless his Worship was required to consider that possibility prior to using the evidence of one complainant to bolster the evidence of another in the way in which he did, and that such consideration should have led to the view that the evidence was not admissible for such a purpose.
13 The circumstances upon which the appellant relies as demonstrating the possibility of concoction are as follows. There was some evidence that the complainants Eaton and Stemac had, separately, taken civil proceedings against the appellant, although the status of those proceedings and the issues arising in them does not appear to have been particularly clear. There was also some evidence that Stemac and Eaton had met on some occasion prior to the hearing; whether this was prior to the making of any complaint or not is not clear. The entirety of the evidence on this point seems to have come from Eaton, who said of Stemac that "when I was working at [Eaton's place of employment] one day ... she came in and I recognised her straight away [apparently from a photograph] and I just --- we just started talking, but you know, I didn't really talk to her for that long. I just said 'Oh, I've seen photos of you, like, before', and stuff ... ". The possibility of concoction is also said to arise from the fact that, as his Worship found, the investigation of these complaints and the bringing them to trial was co-ordinated by a single officer of the Ministry of Fair Trading, and in that respect his Worship, during the course of his reasoning, said:
"In the process of the investigation the witnesses could have been alerted to the allegations of others and firmed in their view that they had been wronged. This could potentially result in a conscious or unconscious temptation to overstate matters adverse to the defendant." (Emphasis supplied.)
14 It is my view that the similarities upon which his Worship relied are not reasonably explicable on the basis of concoction. Whether there is a reasonable possibility of concoction is to be determined "in the light of common sense and experience" (Hoch at 297). Mason CJ, Wilson and Gaudron JJ in Hoch observed that:
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- "If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible." (At 297.)
- In this case, the only witnesses who appear to have potentially known each other prior to the making of their complaints were Stemac and Eaton, and in my view the evidence of that meeting cannot conceivably give rise to an inference that there was a "relationship" which could give rise to such a possibility. There was no evidence of any possible motive for concoction in relation to the witnesses other than Stemac and Eaton, and his Worship's observations about the process of investigation, in my respectful view, amount to no more than speculation and not to a finding that there was an opportunity for concoction as between any particular complainants or witnesses. As Brennan and Dawson JJ observed in Hoch (at 304), a trial Judge should not lightly conclude that there is a real chance of conspiracy; although that observation was directed at complainants in sexual cases, in my view it is applicable generally. Their Honours also observed that even contact or antecedent friendship may be insufficient to found such a conclusion. Their Honours observed that where circumstances appear to warrant an enquiry as to whether there was a real chance of concoction, the Judge must enquire. This is not a case in which circumstances warranted any such enquiry.
15 For the reasons which I have expressed above, it is my view that neither ground of appeal can succeed and the appeal should be dismissed.
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