Hunter v Police - [2014] NZHC 2975

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-28 [2014] NZHC 2975

BETWEEN
BRIAN DAMIAN HUNTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 November 2014

Counsel:

PN Ross for appellant
CR Walker and M Mitchell for respondent

Judgment:

27 November 2014

JUDGMENT OF FAIRE J

Solicitors: Cathedral Law, Napier
Crown Solicitor’s Office, Napier

Hunter v New Zealand Police [2014] NZHC 2975 [27 November 2014]

Table of Contents

Introduction ............................................................................................................[1] Background ............................................................................................................[4] District Court Decision ..........................................................................................[8] Grounds of Appeal ...............................................................................................[10] Submissions................................................................................................................
Appellant’s submissions [14]
Respondent’s submissions [18] Approach to an appeal against conviction ...........................................................[24] Elements of the charge .........................................................................................[28] Analysis ................................................................................................................[34] Result....................................................................................................................[42]

Introduction

[1] The appellant, Brian Damian Hunter, appeals against his conviction in the District Court at Napier on 25 February 2014 on two charges of obtaining by deception and without claim of right contrary to s 240(1)(a) of the Crimes Act 1961.

[2] The first charge alleges that on 23 April 2012, the appellant by deception and without claim of right obtained possession of a service, namely furniture removal, from 18B No 4 Line, Ashhurst to 46 Lindsay Road, Waipukurau. The service was allegedly provided by a company, Wellington Movers Ltd, also known as Manawatu Movers.

[3] The second charge alleges that the appellant, by deception and without claim of right, obtained possession of a service, namely furniture removal from 46 Lindsay Road, Waikpukurau to 95 Pukawa Road, Hastings on or about 30 November 2012. It is alleged that the service was obtained on 30 November 2012. The service was allegedly provided by Crown Worldwide (NZ) Ltd.

Background

[4] In 2012, the appellant moved house twice. His first occurred in April. Wellington Movers Ltd was engaged. That company received a request from a person who identified himself as Brian Shore. He promised that payment would be made by a Mike O’Hara, a lawyer who oversaw his family funds. No payment was made. Wellington Movers Ltd subsequently discovered that the recipient of their services was the appellant. They took the appellant to the Disputes Tribunal and obtained judgment against him. He then made payment.

[5] The second move occurred in November 2012. Crown Worldwide (NZ) Ltd, which traded as Crown Removals and is also referred to as Crown Locations, provided the service for that move. They were told that they were providing the service for and on behalf of a Mr O’Hara. They subsequently discovered that the beneficiary of the service was the appellant. Their account has not been paid.

[6] Both removal services were effectively under-quoted for. Subsequently, both removal companies sought additional payments on top of the original estimated sum.

[7] The appellant maintains that this is a civil dispute and is not a criminal matter.

District Court Decision

[8] Judge Down, in the District Court, recorded that a strong inference arose from the evidence that the appellant was the person behind two identities, namely Messrs Shore and O’Hara. He found by inference that the purpose of the appellant in adopting those identities in the transactions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hunter v Police

Details

AGLC: Hunter v Police [2014] NZHC 2975
Case: [2014] NZHC 2975
Decision Date: 27 November 2014

CaseChat Overview and Summary

The appeal in Hunter v Police concerns the conviction of Brian Damian Hunter, who was found guilty in the District Court at Napier on two charges of obtaining by deception and without claim of right under section 240(1)(a) of the Crimes Act 1961. The charges relate to the appellant obtaining furniture removal services in 2012 under false identities, resulting in non-payment to the service providers. The appellant argues that the conviction should be quashed as the causal link between the deception and the provision of the services was not established. The respondent contends that the appellant's deception in using false identities was the cause of the service providers' actions. The primary legal issue is whether the deception caused the removal companies to provide the services.

The High Court found that the District Court did not address the causation element of the charges. The court determined that the deception element of the offence required proof that the deception caused the obtaining of the service. Since there was no direct evidence from the witnesses on the causation issue, the court concluded that the prosecution failed to prove an essential element of the charges. Consequently, the High Court quashed the conviction and ordered the charges to be dismissed.

Orders