Hunter v Police
[2014] NZHC 2975
•27 November 2014
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 respondentJudgment:
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 with the removal companies could only have been as an elaborate deceit to avoid payment. He said the inference was irresistible. He could find no other reason for the appellant to adopt the false identities other than an intention to deceive and avoid making payment. He concluded, therefore, that at the time the services were obtained, Mr Hunter did so with dishonest intent. He also found that the appellant had no claim of right. That led him to the conclusion that conviction should be entered in respect of the two charges.
[9] The appellant was sentenced to 6 months home detention and ordered to pay
reparation of $2,600. The maximum penalty available is seven years’ imprisonment.
Grounds of Appeal
[10] On behalf of the appellant, Mr Ross, who was not counsel in the District Court, noted there had been a substantial volume material advanced and that the charges were complex, both factually and legally.
[11] Mr Ross confirmed that the grounds of appeal included: (a) Error of law in convicting the appellant;
(b) Breach of privilege;
(c) Admissibility of evidence; and
(d)Irregularities concerning some of the evidence given, such that the convictions were rendered unsafe.
[12] Mr Ross confirmed that the main issue raised in these appeals is whether or not there had been proper proof of causation. The question that must be answered is: whether the services that were obtained by the appellant were in fact obtained as a result of the deception? In short, did the use of a false name by the appellant cause the provision of the service. He submitted that the causal link was not addressed in the decision of the Judge.
[13] Mr Ross confirmed that the appeal grounds concerning prosecutorial misconduct and police misconduct, and relating to disclosure, were not pursued. For that reason, they will not be addressed in this appeal.
Submissions
Appellant’s submissions
[14] Mr Ross submitted that the Judge’s analysis that Messrs Shore and O’Hara were the same person as the appellant and the purpose of adopting these identities could only have been as an elaborate deceit to avoid payment, does not address the causation element of the charges.
[15] He submitted that in relation to the charge involving Wellington Movers Ltd Mr O’Hara could only have been an agent of the appellant. The appellant was clearly the principal and contracting party and remained liable for payment at all times. Therefore, he submitted, if Mr O’Hara was only an agent for making payment, the only person to whom Mr O’Hara could be liable in the event of a failure to do so would be the appellant. On that basis, he submitted that Wellington Movers Ltd was contemplating a contract with the appellant. The details of how and by whom payment was to be made was irrelevant to Wellington Movers Ltd’s decision to provide the service. The deceit around identity was not a cause of the provision of the service.
[16] With respect to Crown Worldwide (NZ) Ltd, Mr Ross submitted that it again had not been established that any deception caused the removal company to provide the service in the first place.
[17] I will not address, at this stage, the submissions advanced in relation to privilege and propensity evidence because, on my view of this case, it is not necessary to go into those areas.
Respondent’s submissions
[18] Mr Walker for the respondent acknowledged that the initial provision of services was not itself occasioned by the use of false identities. He acknowledged that the moving companies might well have provided the services to the appellant had he used his real name.
[19] Mr Walker approached the question of causation by making four submissions.
[20] First, he submitted that the appellant’s argument was essentially trying to separate the provision of the service from the expectation of payment. He submitted that it was wrong to do this and that the contract had to be looked at as whole. He said one cannot separate the provision of service on the one hand from the expectation of payment, on the other.
[21] Second, he submitted the two companies both provided service on the basis that they were dealing with an identified person and that they would be paid by an identified person. The identity of the contracting party and the person required to pay, he submitted, were inextricably linked.
[22] Third, Mr Walker submitted that in response to the submissions that the moving companies, on the evidence, were not concerned about identity and would have provided the service to him in any event was the obvious one. The companies would not have provided the service if they knew they were being deceived as to identity. On that basis, he submitted, it cannot be said that they would have provided the services anyway.
[23] Finally, Mr Walker submitted that because the appellant had obtained services in the name of a false identity and by assuring payment by a false identity, it followed that he obtained the services by deception.
Approach to an appeal against conviction
[24] In each case, the offending occurred prior to the coming into force of the Criminal Procedure Act 2011. Accordingly, by the operation of s 397 the law prior to the coming into force of the Criminal Procedure Act applies. Therefore the appeal is dealt with under the Summary Proceedings Act 1957.
[25] An appeal against conviction is by way of rehearing. Section 121(2) of the Summary Proceedings Act gives the High Court jurisdiction to either confirm the conviction, set it aside, or amend it.
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[27] The appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for the factual findings carefully.2
Elements of the charge
[28] The charges are brought under s 240(1)(a) of the Crimes Act. Section
240(1)(a) provides:
240 Obtaining by deception or causing loss by deception
(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
…
(2) In this section, deception means—
(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
(i) knows that it is false in a material particular;
or
(ii) is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person, in
1 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
[29] For the Crown to succeed, it must prove beyond reasonable doubt that: (a) The appellant obtained a service, namely furniture removal;
(b)A reason or cause for the provider of the service to render the service was the deception, namely the giving of a false name of the person for whom the service was provided and false name of the person who would pay for the service;
(c) The appellant knew that the name given as the person for whom the service was to be provided was false; and
(d)The appellant, in giving the false name, did so with intent to deceive and without claim of right.
[30] Both counsel referred to the Court of Appeal decision in R v Morley.3 The
Court ofAppeal observed that the obtaining by deception offence: (a) Specifies a defined outcome; and
(b)Contemplate an identifiable benefit obtained by the offender and a corresponding disadvantage to the victim.
The court gave the following example:4
Typically, the benefit received and the detriment suffered by the victim will be immediate, as where the offender consumes a meal and fails to pay for it.
[31] The Court of Appeal refers to those situations where the law implies an
3 R v Morley [2009] NZCA 618, [2010] 2 NZLR 608.
… The nature of the implied representation is to be distilled against the background of the relevant contractual arrangements.
[24] Representations have been implied in numerous other contexts as well. In R v Waterfall [1970] 1 QB 148, the English Court of Appeal held that in engaging a taxi the appellant represented that he had the means to pay for the fare. And in DPP v Ray [1974] AC 370 the House of Lords confirmed that the appellant in entering a restaurant and ordering a meal impliedly represented he had the ability to pay. The same has been held of someone who registers as a guest and stays at an hotel: R v Harris (1975) 82 Cr App R 28 (CA).
[32] The Court of Appeal also discussed the mental element of the offences under s 240 and said as follows:6
[51] Simester and Brookbanks at [20.8] and the commentary in Adams on Criminal Law at CA240.11 suggest that proof is required that the accused intended to cause the loss or at least was reckless in this regard.
[52] In relation to each of the three offences of obtaining by deception the offender will be aware of the result or outcome of his deception. Of necessity, he or she will have obtained something of value, obtained credit or secured the performance of a physical act in relation to a pecuniary document. But should this awareness be termed an intention? We do not think so. The defined outcome is part of the actus reus and factual in nature. The occurrence of the outcome must be established by the Crown as a factual element of the offence.
[33] The Court added that the mental elements of the offence are clearly defined. The Court confirmed that proof of an intent to deceive is essential. That intention requires that the deception is practised in order to deceive the affected party. The Court confirmed that “purposeful intent is necessary and must exist at the time of the
deception”.7
Analysis
[34] I have deliberately limited my summary of counsel’s submissions to the
question of causation because Mr Ross, although he did not abandon the other
5 At [23] and [24].
6 At [51]–[52].
7 At [53].
grounds, advanced the case for the quashing of the convictions based on the causation question.
[35] The Judge did not address the question of whether the false names caused the removal companies to provide the services in the first place. That is perhaps not surprising because there was no direct evidence from the witnesses themselves on that question. For example, there was no evidence of a check as to identity and there was no evidence of a credit check on the names given. Further, from evidence from the Wellington Movers case, it is apparent that the company was able to locate the person who was responsible for payment of the account and brought a proceeding against that person and obtained a judgment in the Disputes Tribunal against the appellant.
[36] This raises the specific question, then, as to whether the element of the offence which I identified in [30](b) was addressed and whether there was any evidence which proved that element of the charge.
[37] The question of whether the deception caused the obtaining of the service is a question of fact. The respondent, here, is required to prove the effect of the deception, here the false name on the mind of the person to whom it is made.8
[38] There will be cases where direct evidence of the witness on this causation issue is not, and cannot, reasonably be expected to be available. The obvious case is where an incident has occurred at some time in the past and in respect of a victim who is involved in similar transactions in large numbers. In such cases, proof that the service was obtained by deception may be established by proof of facts from which an inference of such reliance can be drawn.9
[39] The Court of Appeal recently endorsed the approach that must be followed when inferences are drawn and said:10
8 R v Lambie [1982] AC 449 (HL) at 461.
9 At 461.
10 R v Kinghorn [2014] NZCA 168 at [20] – [21].
[20] The methodology involved in drawing an inference has never been better put than by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd:
Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
[21] The drawing of an inference is itself an exercise in fact finding. It is frequently strongly contested.
[citation omitted]
[40] There is, in the evidence here, no suggestion that there was any difficulty in giving evidence on this essential element. The witnesses were available. The fact that they were not asked the question that was critical to this causation issue does not provide a basis for drawing an inference. There does not seem to have been any difficulty in such a question being asked, had those involved turned their mind to this specific issue.
[41] I am therefore drawn to the conclusion that an essential element of the proof of both charges simply was not proven by the prosecution in this case. That being the case, I conclude that the conviction must be quashed.
Result
[42] Accordingly, I order that the conviction entered against the appellant on
25 February 2014 in the District Court at Napier is quashed.
JA Faire J
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