Crowe v The Queen

[2005] NZCA 280

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/05

THE QUEEN

v

MARK JOSEPH CROWE

Hearing:21 November 2005

Court:Hammond, Williams and Gendall JJ

Counsel:N Deobhakta and A J Hamblett for Appellant

H D M Lawry for Crown

Judgment:21 November 2005 

JUDGMENT OF THE COURT

The appeals against convictions and sentence are dismissed.

REASONS

(Given by Hammond J)

Introduction

[1]        Following trial by jury in the District Court at Hamilton, Mr Crowe was convicted of seven counts of dishonestly and without claim of right using a document with intent to obtain a pecuniary advantage, pursuant to s 228(b) of the Crimes Act 1961.  He also pleaded guilty to a charge of incurring credit as a bankrupt.  Subsequently the trial Judge, Judge MacLean, sentenced Mr Crowe to 18 months imprisonment, with leave to apply for home detention on these charges.

[2]        Mr Crowe has appealed to this Court against both his convictions and his sentence.  No Notice of Abandonment of the sentence appeal was filed, but it was not pursued before us.  It is dismissed.

Background

[3]        Mr Crowe was adjudicated bankrupt on 13 November 2003.  A bankrupt is not able to obtain credit over $100 unless he or she informs the person that is giving the credit, that he or she is an undischarged bankrupt.

[4]        The seven counts of using a document to obtain a pecuniary advantage relate to various attempts by Mr Crowe to purchase goods or services with cheques drawn from bank accounts with insufficient funds to cover the amount in the cheque.  On each occasion, Mr Crowe did not tell the vendor of the goods or services that he was an undischarged bankrupt.

[5]        In the course of his sentencing remarks, Judge MacLean understandably highlighted Count 6 as the “most bizarre charge”.  Mr Crowe went to an auction of an expensive house, and presented a $46,000 cheque at that auction. 

The appeal

[6]        We were advised that Mr Crowe now appeals against his conviction only in relations to Counts 1, 2, 3 and 4.  The appeal is mounted on the footing that the verdicts of guilty on those four counts are against the weight of evidence.

[7]        In those circumstances, the relevant test is that enunciated by this Court in R v Ramage [1985] 1 NZLR 392 (CA); the statutory test that a verdict is unreasonable or cannot be supported having regard to the evidence will be satisfied:

… [if] the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.  It is not enough that this Court might simply disagree with the verdict of the jury.

[8]        There is no dispute that Mr Crowe wrote the cheques in question, and that he intended to benefit from so doing.  The sole issue at trial was whether Mr Crowe had the requisite mens rea at the time of writing the cheques in order to establish the offences.  It was common ground that the requisite mental element which had to be established, to the criminal standard, was that Mr Crowe must have dishonestly intended to obtain the particular advantage.

Discussion

[9]        As we have already noted, there is no dispute as to the acts carried out by Mr Crowe.  Mr Crowe admitted his bankruptcy, he admitted he knew of the restrictions on his capacity to obtain credit, and he admitted that he did not tell any of the people that he gave the cheques to that he was bankrupt.

[10]      Mr Crowe gave evidence in his own defence.  He claimed that his actions were due in part to his own creditors not paying him on time.  He also said he believed that he would receive a cheque for $2,600 from the AIC Insurance Company in Rotorua.

[11]      In the result, what the jury had in front of it were all the admitted acts; the sole question was whether, by his own evidence, Mr Crowe had created a reasonable doubt as to his intention on some or all of the relevant occasions.  This was quintessentially a jury issue. 

[12]      Telling admissions or concessions were made in cross-examination by Mr Crowe.  For instance that when he wrote the cheques he believed they would not be honoured initially, but that they could be honoured at a later stage when presented for a second time.  He was unable to substantiate a reasonable expectation for the one off deposit.  Further, when the insurance money did eventually fall in, it was not in fact paid to creditors or recipients of the cheques covered by Counts 1, 2, 3 and 4.

[13]      In those circumstances, it is hardly surprising that the jury had little difficulty in rejecting Mr Crowe’s version of events.  But in any event, it cannot possibly be said in this case that the test in R v Ramage which we set out earlier in this judgment has been satisfied.

[14]      The appeal against conviction is also dismissed.

Solicitors:
Crown Law Office, Wellington