Fuatavai v Police
[2012] NZHC 2349
•12 September 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-466 [2012] NZHC 2349
BETWEEN CAROLINE FUATAVAI Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 21 August 2012
Counsel: Appellant on own behalf
R Savage for the Respondent
Judgment: 12 September 2012
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 12 September 2012 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Copy To: C Fuatavai, 28 Hayman Place, Beachaven, Auckland 0626
R Wood, PO Box 6422, Auckland
FUATAVAI V POLICE HC AK CRI-2011-404-466 [12 September 2012]
[1] Ms Fuatavai was convicted on 4 July 2011 of five charges of dishonestly using or attempting to use a document with intent to obtain a pecuniary advantage under s 228(b) of the Crimes Act 1961. Her convictions followed a Judge-alone trial in the Auckland District Court.[1]
[1] Fuatavai v New Zealand Police DC Auckland CRI-2010-044-2651, 4 July 2011.
[2] Ms Fuatavai was sentenced on 16 December 2011 to community detention for four months, 75 hours of community work, and reparation of $1,120 to be paid at
$30 per week.[2]
[2] Although conviction under s 228 carries a maximum penalty of seven years’ imprisonment the fact that Ms Fuatavai was summarily convicted means that a jurisdictional limit of five years’ imprisonment applies, by virtue of s 7 of the Summary Proceedings Act 1957.
[3] Ms Fuatavai has appealed both her conviction and sentence.
Background
[4] Ms Fuatavai and the complainant, Ms Ting, are neighbours and, until the events giving rise to these proceedings, were friends. On about 10 February 2010
Ms Ting reported her BNZ Eftpos card missing. CCTV footage taken at the SkyCity ASB ATM shows Ms Fuatavai using the card at that machine on 2 February 2010, although it is not contended that she made any withdrawal on that occasion. The bank records indicate that only an “inquiry” or balance request was made. Ms Fuatavai did not deny that she made this inquiry but says that she did so at the request of Ms Ting, who (she says) was nearby at the Casino. Ms Fuatavai says that Ms Ting gave her the relevant PIN number.
[5] Ms Ting denied both being at the Casino and that she had ever given Ms Fuatavai the PIN number of her card. The prosecution case was that Ms Fuatavai must have observed Ms Ting using her card on some other occasion, and seen and remembered her PIN number.
[6] Ms Fuatavai also said in her evidence (although this was not put to Ms Ting
by Ms Fuatavai’s lawyer at the trial) that on 27 January 2010 she had gone with
Ms Ting to another ATM at Highbury and Ms Ting had asked her to use the card in
the machine on her behalf. She said that, on that occasion, the machine had swallowed the card because she had input the wrong PIN number but that she and Ms Ting had then retrieved it from the bank.
[7] On 3, 5 and 7 February 2010 Ms Ting’s card was used to make four withdrawals, totalling $1,120, from an ASB ATM in Beach Haven, near where both Ms Fuatavai and Ms Ting live. Ms Fuatavai denies that these withdrawals were made by her without Ms Ting’s authority (it is not entirely clear to me whether Ms ting accepts she was present). It appears there is no CCTV camera installed at that location.
[8] After Ms Ting had reported the card missing, the Police executed a search of
Ms Fuatavai’s house but did not locate Ms Ting’s Eftpos card there.
District Court Judgment and Sentencing
[9] The learned District Court Judge made it clear in his judgment that Ms Fuatavai’s trial, and the subsequent oral delivery of his judgment, occurred under some time pressure. It is perhaps for that reason that no express distinction is drawn in the judgment between the charge relating to the events of 2 February (when no withdrawal was made or even attempted), and the others.
[10] As regards the “withdrawal” charges, however, the Judge said that the key question was one of credibility, and in particular whether he preferred Ms Ting’s or Ms Fuatavai’s evidence. In that respect he recorded that he found Ms Ting to be a “forthright and frank” witness.[3]
[3] At [5].
[11] It was solely on the basis of his assessment of the respective credibility of the two women that the Judge found that Ms Ting and Ms Fuatavai were not at Sky City together and that Ms Ting had never given Ms Fuatavai the PIN to her card. He was therefore able to conclude that Ms Fuatavai was never in authorised possession of
the card and was therefore guilty of the five counts.
[12] In his sentencing notes, the Judge noted Ms Fuatavai’s previous convictions for dishonesty offences (she has 72 previous convictions) and that home detention would generally be regarded as appropriate. However, he said that Ms Fuatavai’s attempts to make something of her life (she has had no convictions for around
10 years) and her good references pointed towards the lesser sentence that he ultimately imposed.
Application to adduce further evidence
[13] Ms Fuatavai sought to put in evidence on her appeal an affidavit from Ms Hughes. Even putting to one side the normal threshold for fresh evidence on appeal (could the evidence have reasonably been adduced at the hearing), the relevance of what Ms Hughes says to the issues on appeal is far from clear to me. In any event it does not, in my view, assist Ms Fuatavai and I do not propose to take it into account.
Formal basis for the appeal
[14] In formal terms Ms Fuatavai advanced her appeal against conviction on the basis that, on 22 February 2010, she requested information from the Police about the date upon which she was alleged to have used Ms Ting’s card at Sky City. She argues that the Police did not disclose the DVD containing this information until
18 March 2011. She said that this delay prevented her from obtaining CCTV footage of the foyer or interior of Sky City, which would have shown that Ms Ting accompanied her on 2 February. Ms Fuatavai argues that such evidence would have encouraged the Judge to prefer her version of events over Ms Ting’s because it would undermine Ms Ting’s assertion that she was not at Sky City that day.
[15] As I understood it, Ms Fuatavai also contended that the Police failed to obtain other CCTV footage that would show that Ms Ting’s card had been used at the ATM in Beach Haven either by Ms Ting or in her presence (I am not sure which). Ms Fuatavai said that she had asked the Police to obtain this evidence so she could use it in her defence, but they failed to do so. When questioned about this in the
District Court, however, the Police Officer concerned said that there was no CCTV
camera in that location.
Discussion
[16] While the position as regards the CCTV footage may be unfortunate from Ms Fuatavai’s perspective I do not think it can found a successful appeal. Instead, I propose to consider the whole matter afresh, insofar as I am able to do so, on the basis of the material before me. That appears to me to be consistent with the appellate approach endorsed by the higher Courts in Austin, Nichols & Co Inc v Stichting Lodestar and with fairness to Ms Fuatavai, who was self-represented in the appeal.[4]
[4] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
[17] I begin by saying that my own impression of Ms Fuatavai in Court was that, although she was agitated and at times flustered, she seemed very sincere and was vehement in her continued denial of the offences for which she has been convicted. I did not of course have the advantage of seeing and hearing either her or Ms Ting’s evidence, although I have carefully read the District Court transcript.
[18] It is apparent from the transcript that Ms Fuatavai was confused about the dates and days of the week on which certain things occurred, and in particular about the date or dates of her visits to the Casino with Ms Ting. She was, however, giving her evidence 18 months after the event, although it seems that her earlier discussions with Police may also have been a little confused from the outset. But her reliability as a witness is not, of course, to be confused with her credibility.[5]
[5] See for example Jenkinson v Police HC Christchurch CRI-2010-404-242, 8 February 2011; Samuel v Auckland City council HC Auckland CRI-2010-404-469, 2 June 2011
[19] However, the transcript of Ms Ting’s evidence verges on the incoherent. The combination of a significant language barrier and related transcription difficulties, together with Ms Ting’s apparent refusal to answer questions that she considered were not relevant, make it very difficult to determine precisely what she said in her
evidence, let alone to gauge her credibility. To that extent, therefore, I must accept
.
the learned District Court Judge’s assessment that Ms Ting was more compelling in
person than on the written page.
[20] Therein, of course, lies the central difficulty in this appeal. As I have said,
the judgment under appeal discloses that it was very much a “she said/she said” case
– there is little common ground between the critical parts of the evidence given by Ms Fuatavai and Ms Ting, and there is little by way of objective fact to anchor what either woman has said.
[21] Although I accept that Austin, Nichols makes it clear that credibility remains an area where an appellate Court may properly think twice before substituting its own view for that of the Court below, it goes too far to say that credibility findings are immune to reappraisal on appeal. There has, I think been a subtle change in that respect in recent times. Where, for example, the judge at first instance has assessed credibility solely by reference to witness demeanour and other such subjective criteria, close appellate scrutiny may well be justified.[6] Indeed, it seems to me that such scrutiny may in fact be required in a case such as the present where the credibility assessment appears to constitute the sole basis for the wholesale rejection of one side to the exclusion of the other.[7]
[6] For example in Sateki v R [2011] NZCA 239 at [28], the Court of Appeal commented that witness demeanour is a notoriously unreliable way of assessing credibility.
[7] A similar view seems to have been taken by Simon France J in Hovell v Police HC New Plymouth
CRI 2008-443-000018, 4 September 2008 at [20].
[22] And, even where there is a more discernible objective basis for the first instance judge’s assessment of credibility (involving reference to matters such as the internal consistency and plausibility of the evidence given) the position remains that:
... the appellate court must undertake a “real review”, weighing conflicting
evidence and drawing their own inferences and conclusions.
[23] That is what I attempt to do below.
[24] The theory of Ms Fuatavai’s defence was essentially that Ms Ting had gone on a Trade Me “spending spree” during her husband’s absence overseas (from
31 January 2010). Ms Fuatavai was aware of this because she drove Ms Ting to
collect the things that she had purchased (Ms Fuatavai was in fact teaching Ms Ting to drive), and Ms Fuatavai said because Ms Ting had made (or got Ms Fuatavai to make) the cash withdrawals to pay for her purchases. Ms Fuatavai said that Ms Ting subsequently made up the story about the card being stolen to avoid her husband’s wrath and to obtain compensation from the bank.
[25] There is some objective support for Ms Fuatavai’s evidence in this respect in
that:
(a) Ms Ting accepted that she did make some Trade Me purchases (for
$150 and $400) during this period and that she did pay for them in cash (there was further confirmatory evidence from the Trade Me sellers);
(b)Ms Ting accepted that her husband was in China during the period in question (and his passport confirmed this);
(c) Ms Ting did not report her card either as missing to the bank or as stolen to the Police until 10 February 2010 (the account inquiry made by Ms Fuatavai at the casino was made on 2 February and the first significant withdrawal was on 3 February);
(d)As I understand it, the bank did pay Ms Ting some compensation for the funds that she said had been stolen from her account.
[26] In addition, when asked why she did not immediately apply for a replacement card, upon discovering that hers was missing, Ms Ting said:
Because I love money. I’m not allowed to use ... the card, otherwise, on this month, on this time, I haven’t got any money come into the account.
[27] That statement in my view provides (some) support for Ms Fuatavai’s evidence that Ms Ting often referred to herself as “bank broken” (by which I think she meant “broke”) and that she had a somewhat cavalier attitude to money and to bank accounts.
[28] On the other hand, the transcript shows that Ms Ting adamantly denied that the cash used for the purchases came from the ATM withdrawals in question. She said (as I understand it) that she was able to withdraw the money for that purpose from some other account simply by using her drivers’ licence at the bank. It is perhaps unfortunate that there appears to have been no corroborating evidence about the existence of such an account. I assume that the licence referred to by Ms Ting must have been a learner’s licence given the evidence was that she could not drive.
[29] There is no direct correlation (in terms of amounts) between the cash withdrawn and the prices paid for the Trade Me purchases.
[30] In terms of the allegations that gave rise to the charges themselves are concerned, there is, of course, no doubt that on 2 February 2010 Ms Fuatavai did have possession of Ms Ting’s ATM card and that she knew and used her PIN number at the Sky City ATM on that day. On the other hand, however, the evidence is also clear that she did not attempt to withdraw any money on that occasion, which arguably supports Ms Fuatavai’s version of events; why would a would-be thief simply check the balances and not try to make a withdrawal? No evidence was given about whether Ms Ting’s account was in debit or credit at that point. It is perhaps significant in that respect that the card was later used to attempt to make withdrawals which were refused on account of insufficient funds, notwithstanding balance inquiries having been made immediately prior to the attempt.
[31] As I have said, Ms Ting denied giving Ms Fuatavai her card or her PIN number and denied that she was at the casino with Ms Fuatavai on 2 February. The Judge’s acceptance of Ms Ting’s evidence to the contrary was predicated on his acceptance that:
(a) Ms Fuatavai had stolen Ms Ting’s card from her house when visiting one day in late January (Ms Ting said she had left the card by her computer);
(b) Ms Fuatavai’s friendship with Ms Ting had provided her with the
opportunity to observe and memorise Ms Ting’s PIN numbers;
[32] Ms Ting’s clear recollection of leaving the card by the computer does not sit particularly easily with the delay of over a week before she reported it missing. As well, Ms Ting’s own evidence indicated that she has in the past frequented the Casino (her daughter apparently works there). Indeed, for reasons that are (from the transcript) confused, Ms Ting has been banned from the Casino premises. While on the one hand the existence of a ban might support Ms Ting’s version of events (ie that she was not there), it might equally support Ms Fuatavai’s (ie that she was there but did not wish to be seen). The existence of a ban might also arguably support an inference that Ms Ting had difficulties with money although in light of the lack of clarity about the reasons for the ban, however, it is probably not an inference that can properly be drawn.
[33] Any finding of guilt in relation to the withdrawals made after 2 February is necessarily predicated on an acceptance that Ms Fuatavai’s possession and use of Ms Ting’s card on 2 February 2010 was without her consent. If Ms Ting knew and consented, it could reasonably be inferred that Ms Fuatavai gave the card back on
2 February and that Ms Ting made those later withdrawals, or authorised them to be made herself. But if Ms Ting did not know and consent, it could reasonably be inferred that Ms Fuatavai kept the card and made the withdrawals. But, apart from such an inference, there is no other evidence that Ms Fuatavai made any later unauthorised withdrawals.
[34] When it comes to the admittedly difficult task of drawing conclusions from the evidence I have set out above, it seems to me that both the starting and the end point in this case is that the prosecution carried the burden of proving beyond reasonable doubt that, Ms Fuatavai dishonestly used or attempted to use Ms Ting’s EFTPOS card on the occasions alleged, and that she did so with intent to obtain a pecuniary advantage. While I accept that I did not have the benefit of seeing the witnesses for myself, the “real review” of the evidence that I have attempted to conduct raises reasonable doubt in this respect.
[35] In order to find Ms Fuatavai guilty of the 2 February charge, it seems to me that the Court would need to be sure that on that occasion Ms Fuatavai intended to use the card to obtain a pecuniary advantage, but attempted and failed to do so. In
my view the existence of such an intention is, on its face, inconsistent with the fact that Ms Fuatavai went no further than checking the balances and did not try to make a withdrawal.
[36] In order for me to conclude that the charge was proven, the Court would need to be prepared to conclude that Ms Fuatavai did not pursue her dishonest intention because the account balances she obtained revealed that Ms Ting’s accounts were not in funds. There was, however, no evidence that that was the case. And, as I have said, the subsequent transactions indicate that attempted withdrawals were made notwithstanding that account inquiries made immediately beforehand would (presumably) have shown an absence of requisite funds.
[37] A finding that her dishonest intention on 2 February has not been proven arguably lends credence to Ms Fuatavai’s version of events on that day. Her evidence that Ms Ting had simply asked her to check the balances is consistent with what she in fact did. As I have said, Ms Ting was plainly no stranger to the Casino. Although she may have been confused about dates and times, Ms Fuatavai’s evidence that they were there together is far from implausible.
[38] If it cannot be said that the Crown proved the 2 February charge beyond reasonable doubt, proof of the later charges also becomes more difficult. If there is reasonable doubt that Ms Fuatavai was in possession of Ms Ting’s card on
2 February without Ms Ting’s authority, then can an inference properly be drawn that she retained the card or dishonestly made the later withdrawals? The Police did not locate the card when they searched Ms Fuatavai’s house. There is no evidence of her being seen with, or spending, unusual amounts of cash during the week in question. Rather, the evidence suggests that it was Ms Ting, who was not particularly good at managing her money, who was making cash payments for her internet purchases during that period.
[39] In the end, I consider that the evidence in this case did not establish Ms Fuatavai’s guilt of any of the five charges beyond reasonable doubt. My own analysis of the evidence is at odds with the view the learned District Court Judge formed about the respective credibility of Ms Fuatavai and Ms Ting.
[40] Ms Fuatavai’s appeal is allowed and her conviction and sentence are quashed accordingly. In the circumstances I do not consider it is appropriate to order a retrial.
[41] A copy of this judgment is to be forwarded to Mr Richard Wood
Rebecca Ellis J
1
0