Brown v Police HC Auckland Ap7/02

[2002] NZHC 593

IN THE HIGH COURT OF NEW ZEALAND AP7/02

BETWEEN MARGARET JEAN BROWN
Appellant

AND

POLICE
Respondent

Hearing: 4 June 2002

Appearances:
M R Radford for Appellant
C A O’Connor for Respondent

Judgment: 17 June 2002

JUDGMENT OF CHISHOLM J

Aspinall Joel Radford Bowler, Timaru
Crown Solicitor, Timaru

[1] The appellant appeals against her conviction on two charges of obtaining credit by means of a false pretence. The first charge relates to a debt of $162.70 incurred on 4 October 2001 and the second to a debt of $306.70 incurred on 6 or 7 October 2001. Both debts arose from the supply of goods to the appellant by Lizzy’s Dairy, Tinwald. Following conviction the appellant was sentenced to two months periodic detention.

Background

[2] On 4 October the appellant went to the dairy and uplifted goods to the value of $162.70 indicating that she would pay for the goods the next day. The police case was that the appellant obtained credit by representing that the account would be paid by the Turley Partnership, a farming partnership by whom the appellant’s husband was employed. Within a day or two of the first debt having been incurred further goods to the value of $360.70 were uplifted by the appellant. Again it was the police case that the appellant obtained credit by representing that the account would be paid by the Turley Partnership.

[3] Neither account was paid. The appellant maintains that she endeavoured to make payment into the complainant’s bank account but was unable to do so because the complainant had supplied her with an incorrect bank account number. Eventually the account was paid by Mr Turley and he was reimbursed by the appellant the next day, but by that time the matter had been referred to the police.

[4] Initially each information alleged that the appellant had obtained credit by purporting to be a member of the Turley Partnership. However, after the prosecution had presented its evidence (viva voce evidence from the complainant together with briefs of evidence from two directors of the Turley Partnership and from Constable Mawhinney which were admitted by consent) the Judge amended the informations to allege that the appellant had obtained credit by representing that the debts would be paid by the Turley Partnership. Following the amendment the complainant was recalled and was further cross-examined by counsel for the appellant after which the prosecution case was closed. The appellant gave evidence on her own behalf.

[5] Having summarised the ingredients of the offence (there being no challenge to the Judge’s analysis) and having noted conflicts between the evidence of the complainant and the evidence of the appellant, the Judge indicated that to find the charges, or either of them, proved he would need to accept the essential aspects of the complainant’s evidence and reject crucial aspects of the appellant’s evidence. Although the Judge noted some unsatisfactory features of the complainant’s evidence, particularly in relation to the timing of an alleged conversation regarding the name in which the account should be recorded and whether credit had been extended to the appellant on any earlier occasions, he accepted that “in all important respects ’’the transactions occurred as described by the complainant. He decided:

“[33] . . . If Mr Amey [the complainant] wrote “Turley Partnership” on the invoice on 5 October 2001, and that evidence has not been challenged, then it is difficult to see how he could have got that information unless the conversation to which he deposed had occurred by then.

[34] I am also satisfied beyond reasonable doubt that during the period prior to the two transactions you conveyed to Mr Amey, both by what you said and by what you did not say, that you were in fact one of the Turley family and that by 4 October and the following days, when crucial events occurred, all you had to do was to cement that impression in Mr Amey’s mind by telling him why you required the goods in question.’’

The Judge accepted that the goods had been purchased in the context of a fatal accident suffered by one of the employees of the Turley Partnership and that it was significant that the appellant had mentioned that one of “our workers’’ was killed on 4 October.

Determination

[6] In relation to each charge the crucial issue is whether the evidence establishes a false pretence as alleged in the amended information. The expression “false pretence” is defined by s 245(2) of the Crimes Act 1961:

“A false pretence is a false representation, either by words or otherwise, made with a fraudulent intent to induce the person to whom it is made to act upon it.’’

Mr Radford argued that there was no false pretence and that the complainant had simply assumed that the appellant was Margaret Turley and that the account would be paid by the Turley Partnership. He also argued that the complainant willingly extended credit to the appellant even though he only knew her as “Margaret” and that there was no nexus between the extending of the credit and any representation that might have been made about the Turley Partnership.

[7] Since the Judge had the benefit of seeing and hearing the witnesses his conclusion that in all important respects the transactions occurred as described by the complainant should be honoured. But, as the Judge noted, the complainant’s evidence has its problems. On many occasions the complainant has backtracked on his earlier evidence and a coherent picture of the events that he is describing can only be achieved by sifting through his evidence. In this respect I have the benefit of time and a transcript, neither of which were available to the Judge.

[8] Before the dealings giving rise to the charges were transacted the appellant had purchased items from the complainant’s shop on several occasions. The complainant could not remember how many occasions but thought it might have been around five to 10. At that time he only knew her as “Margaret” and on one occasion he had extended her credit for a couple of days because she only had a $50 note. He acknowledged that the credit had been extended to her personally as “Margaret”.

[9] On another occasion the appellant had come to the dairy and while having a cup of tea with the complainant had said that the heavy goods inspectors were giving “our trucks hell” or words to that effect and that they had taken two or three trucks off the road. At that time the complainant was aware that there was a Turley farming enterprise and he assumed that the appellant was Margaret Turley. He acknowledged that she had not directly mentioned the name Turley and he had simply made an assumption.

[10] When the appellant came into the shop on 4 October she said that there had been a terrible accident out at the farm and she asked the complainant whether he could supply some “food, drink and that for the guys that are out there”. At the time he wrote the order down on a piece of paper and noted that it was to be charged, as he put it, to “just Margaret . . . assuming that she would be in the next day to pay for it”. The arrangement was that she would be in the following day and pay by cheque because she did not have Eftpos or anything with her because of the rush. He assumed that she was Margaret Turley, although she did not say so.

[11] The following day the appellant came into the shop to purchase more goods. It was indicated that normally she would be in with a cheque “but because of the stress she was under regarding the incident she had forgotten everything”. The complainant was told to put it down to Turley and when he asked whether it was Turley Farm or Turley Partnership she said “That will do”. An invoice was written out in the invoice book to the Turley Partnership. Confusion in the complainant’s evidence about when the conversation took place and when the invoice was written out led the Judge to attempt to clarify those issues:

“Q. When was this conversation which you had with her [the appellant] about Turley Farms/Turley Partnership and she said “That will do”. When was that conversation?

A. That would have been at the end of the second book up which was the day after the 6th or 7th

Q. But hang on, you have already written Turley Partnership in the invoice book by then?

A. I wrote the first one out.

Q. In the name of the Turley Partnership?

A. Correct.

Q. Where did you get the wording “Turley Partnership” from to write it in the invoice book?

A. I asked her after the first day that she said get the second lot I think it was. Knowing her as Margaret Turley or again, sir, an assumption that the name was Turley because the previous conversation, never actually being told it was Turley, exactly when I wrote there in fact I can’t honestly say. I can say I wrote it out on the 5th but exactly when I cannot say because the second lot is in addition to the first lot.”

At the end of the complainant’s evidence the Judge again sought clarification as to when the conversation had occurred and received the answer from the complainant “I believe it to be the second”. On the evidence it must be clear that the conversation about charging the “Turley Partnership” did not take place before 5 October and was related to the second transaction. In other words, the conversation and any representation arising from it could not relate to credit incurred on 4 October.

[12] Some conclusions can now be reached. When the credit was incurred on 4 October the complainant extended that credit in the belief that the person he knew as Margaret (but assumed to be Margaret Turley) would come in the next day and pay the account. In other words, the complainant extended the credit because he thought the account would be paid the next day. This had happened on a previous occasion (even before he had formed the impression that the appellant was Margaret Turley) when he had extended her credit for a couple of days simply on the basis that she was “Margaret”. The final factor that sounds the death knell to the first charge is that subsequently (probably the following day) the complainant had to ask the appellant which Turley account was to be charged. If there had already been a representation that the account was to be charged to the Turley account it would not have been necessary for this question to have been asked. In my opinion the conviction on the first count is unsafe and cannot stand.

[13] On the other hand, there is a sound evidential foundation for the conviction on the second charge. The complainant’s evidence was to the effect that when he made an inquiry about who the goods were to be charged to at the time the second order was placed it was indicated that they were to be charged to the Turley Partnership. While that allegation was denied by the appellant the Judge preferred the complainant’s evidence and that preference was entirely within his prerogative. Thus the necessary representation was proved in relation to that charge.

Outcome

[14] The appeal against conviction on the first count is allowed and the conviction is set aside. The appeal against conviction on the second count is dismissed. To reflect this outcome the sentence of two months periodic detention will be quashed and replaced by a sentence of one month’s periodic detention.