Johnson v Police
[2019] NZHC 2966
•13 November 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-67
[2019] NZHC 2966
BETWEEN SHAUN JOHNSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 November 2019 Counsel:
T W Luders and J E Spiers for Appellant S K Brennan for Respondent
Judgment:
13 November 2019
JUDGMENT OF THOMAS J
Introduction
[1] Mr Johnson appeals against his conviction for obtaining $771 by deception through a Trade Me auction.1 Mr Johnson was convicted after a Judge-alone trial in the District Court on 5 April 2019.2 His ground of appeal is that the District Court erred in its assessment of the evidence and failed to provide adequate reasons.
Background and District Court trial
[2] Most of the facts are not disputed. In 2016, Mr Johnson operated an address verified account on the online auction website, Trade Me. There was evidence in the District Court of several transactions made, apparently without issue, around the time the offending is alleged to have occurred.
1 Crimes Act 1961, ss 240(1)(a) and 241(b); maximum penalty one year’s imprisonment.
2 Police v Johnson [2019] NZDC 6577.
JOHNSON v NEW ZEALAND POLICE [2019] NZHC 2966 [13 November 2019]
[3] On 1 June 2016, the complainant purchased an Apple MacBook Pro laptop from Mr Johnson for $756 plus $15 for an overnight courier. The complainant then paid $771 into Mr Johnson’s bank account and provided his address for delivery. The money appeared as cleared funds in Mr Johnson’s bank account the same day.
[4] On 2 June 2016, the complainant sent two emails to Mr Johnson requesting a tracking number and asking for confirmation Mr Johnson had sent the laptop. That evening, Mr Johnson replied:
Hi, yes my wife was going to post today she will be home around 10 to confirm, thanks.
[5] On 5 June 2016, the complainant sent a further email to Mr Johnson asking if he had sent the laptop and again requesting the tracking number. The complainant sent a further email on 7 June 2016, saying he had not yet received the laptop and pointing out it was supposed to be sent by overnight courier. On 8 June 2016, the complainant sent a further email consisting of a series of question marks and exclamation marks. Mr Johnson replied on 8 June 2016 as follows:
Hi, you should have it buy now, will find tracking number and check what the story is.
[6]Nearly two hours later, the complainant sent a further email to Mr Johnson:
Can you please reply asap, need it for urgent last week Thursday or Friday, its almost week mate, please ask your wife asap and reply with tracking number.
[7] There was no further correspondence from Mr Johnson. The same day (8 June), the complainant reported Mr Johnson’s account to Trade Me, explaining it had been over a week, Mr Johnson had not supplied the tracking number for the overnight courier and he had not been clearly responding. Trade Me disabled Mr Johnson’s account on 14 June 2016 and advised the complainant it suspected the account to be fraudulent and he should contact police. That same day, the complainant sent one further email to Mr Johnson consisting of another series of question marks and exclamation marks.
[8] The laptop never arrived. The complainant provided a statement to police on 21 June 2016. Police made several inquiries in relation to the complaint and, around
October 2016, obtained a production order from the District Court for Mr Johnson’s bank account, which was served on the fraud investigation team with Mr Johnson’s bank. Police contacted Mr Johnson on 17 January 2018. When asked about the transaction involving the complainant, Mr Johnson declined to comment.
[9] The issue at trial was whether Mr Johnson sent the laptop. The prosecution called one witness, Erin Read, the Acting Team Leader of Investigations at Trade Me. Ms Read provided evidence that Mr Johnson’s account was created on 28 May 2016, two days before the transaction in question. It was registered under the username “trademetrader23”. The name provided upon registration was Shane Johnson and the date of birth 13 April 1993.3 Mr Johnson’s first name is Shaun and he was born in 1981.
[10] Ms Read confirmed that Mr Johnson had created five separate listings between 28 May 2016 and 30 May 2016. In cross-examination, Ms Read confirmed that, to her knowledge, the complainant was the only Trade Me user to have complained about Mr Johnson’s account. On the basis of these concessions, the defence applied at the end of the prosecution case for the charge to be dismissed because the prosecution could not exclude the reasonable doubt that the laptop had not arrived due to a postal failure.4
[11]The Judge refused to dismiss the charge.
[12] The defence called one witness, Mr Johnson. Mr Johnson confirmed those five items were the only ones he listed with the account. He said he had an arrangement with an insurance company whereby he would purchase Apple products, refurbish them and on-sell them through Trade Me. I observe in passing that, while three of the other listings were for Apple products, one was for a motor vehicle. Mr Johnson reiterated that he had not received any complaints from the other four purchasers.
3 Ms Read’s formal written statement was read as the first part of her evidence in chief at the trial. It stated that the name provided was “Shane Johnson”. Responding to the police prosecutor’s questions, Ms Read said the name registered was “Shaun Johnson”. This was later clarified as “Shane Johnson”. Mr Johnson also signed his email exchanges with the complainant “Shane”.
4 Criminal Procedure Act 2011, s 147.
[13] In relation to the sale of the laptop to the complainant, Mr Johnson said he asked his then partner to post the item on his behalf. In relation to the email he sent to the complainant on 2 June 2016, Mr Johnson said he had checked with his partner and she said she sent it. He provided the name of his partner but explained they had not been together for about three or four years. He said he had done “all [he] could within [his] power to get her to come to give evidence to say that she had sent it” but that they were no longer in contact and she had mental health problems.
[14] When pressed in cross-examination on exactly when he and his partner separated, Mr Johnson said:
As I just said that’s something I don’t want to talk about, it makes me upset.
When asked again, Mr Johnson said: “I don’t know. It seems like 10 years ago”.
[15] In relation to the email correspondence with the complainant, Mr Johnson said, although he considers himself “good at technology”, email is not one of his “stronger forms of communication”. He said he preferred to call or text. When asked whether he checked the emails from the complainant, Mr Johnson said not much checking was done after he had notified the complainant that his partner had sent the laptop. He accepted he had seen the further emails from the complainant but said this was not until later. He said he assumed the laptop had arrived because the emails had eventually stopped, and he did not feel the need to follow up.
[16] Mr Johnson said he received no follow-up from Trade Me or the police. He said the next time he was spoken to about the transaction was when police summonsed him to Court in January 2018.
[17]After re-examination, the Judge briefly questioned Mr Johnson:
Q You knew on the 17th of January last year that the computer hadn’t arrived. That’s when this policeman came to see you, the 17th of January 2018, over a year ago?
A Yes.
Q Have you made any attempts since then to repay the purchaser? A I am fully under the, I do not think he did not receive it.
Q Well you haven’t challenged his evidence that he didn’t.
AYes, I understand that’s how this charge has come about. But also, just with my train of thought, also seen here as IT, he has the username “IT” whatever it was, “IT special” whatever. He is aware that they are expensive items, and this could just be a ploy or some dishonest behaviour by him to have something for nothing.
Q It could be dishonest behaviour by you too, couldn’t it? A Well that’s not how I post, had things going.
QWell, I’ll tell you bluntly, Mr Johnson, I find you completely and totally dishonest.
A Sorry?
Q I find you completely and totally dishonest.
[18] The Judge’s decision was very brief. Only two paragraphs are relevant to conviction:
[1]I will not trouble everyone with the recitation of the facts.
[2]The charge is proved. I find that Mr Johnson is a dishonest person. He knew on 17 January last year that the computer had not reached its destination. He has made no attempt since then to repay the purchaser the $771. That is behaviour that is outrageous in any commercial sense. I find you guilty.
Obtaining by deception
[19] To establish a charge of obtaining by deception, the prosecution must prove beyond reasonable doubt that:5
(a)with an intent to deceive;
(b)the defendant made a representation that was materially false;
(c)knowing of the falsity or being reckless in that regard; and
(d)obtained ownership, possession or control of something of value in terms of s 240(1)(a).
5 See Crimes Act 1961, s 240; and R v Morley [2009] NZCA 618, [2010] 2 NZLR 608 at [55].
Case on appeal
[20] Mr Luders, for Mr Johnson, submitted that the Judge failed to provide adequate reasons for his decision and the reasons given suggest the Judge erred in law. In this regard, Mr Luders highlighted the Judge’s comments about Mr Johnson’s conduct after he was charged in January 2018. Mr Luders submitted this conduct had no bearing on proof of the charge, which depended on Mr Johnson’s knowledge and intent at the time he obtained the money from the complainant on 1 June 2016.
[21] Mr Luders noted that the prosecution case relied on an inference that Mr Johnson never sent the laptop and never intended to do so. He submitted there were two inferences equally available on the evidence, the other being the laptop was sent by Mr Johnson but it did not arrive due to postal error. This possibility was bolstered by the alleged lack of investigation at the time, the fact Mr Johnson maintained both at the time and in cross-examination that the laptop had been sent and the fact Mr Johnson’s four other Trade Me transactions occurred without problem. In Mr Luders’ submission, this amounted to a reasonable doubt and the Judge erred in finding Mr Johnson guilty.
[22] Furthermore, Mr Johnson was, in Mr Luders’ submission, prejudiced by the delay in bringing the charge, which did not occur until approximately 18 months after the Trade Me transaction, with the trial occurring almost three years after the transaction. In those circumstances, the prospect of obtaining the tracking number was, in his submission, impossible, although he acknowledged there was no evidence to support that proposition.
[23] Mr Brennan, for the Crown, acknowledged the Judge erred by failing to provide adequate reasons, but submitted no miscarriage of justice had occurred because the guilty verdict was supported by the evidence at trial. Mr Brennan submitted Mr Johnson’s explanation that he assumed the laptop had been received was unconvincing. Mr Johnson’s evidence that his partner sent the laptop was inadmissible hearsay and an adverse inference could be drawn from Mr Johnson’s failure to call her as a witness or provide other evidence the laptop had been sent.6
6 Trompert v Police [1985] 1 NZLR 357 (CA) at 358.
[24] In Mr Brennan’s submission, the Judge’s remarks on Mr Johnson’s conduct from January 2018 were relevant to his assessment of Mr Johnson’s credibility, rather than any element of the charge. He submitted this Court should exercise caution before interfering with the Judge’s credibility finding.
Analysis
[25] To succeed on appeal, Mr Johnson must establish that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.7 A miscarriage of justice is an error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.8 A “real risk” is where “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.9
[26] In Sena v Police, the Supreme Court recently explained that a challenge to a trial judge’s assessment of the evidence is an appeal by way of rehearing conducted on the basis of the principles established in Austin, Nichols & Co Inc v Stichting Lodestar.10 That means the appellate court must reach its own view on the evidence, although the burden remains on the appellant to demonstrate that the trial judge erred in his or her assessment. Appropriate weight must be given to advantages the trial judge would have had in assessing matters such as credibility.11
[27] The Supreme Court also emphasised that trial judges are required to provide sufficient reasons for their determinations, including determinations on credibility:12
... We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of
7 Criminal Procedure Act 2011, s 232(2).
8 Section 232(4).
9 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
10 Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
11 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29]–[31].
12 Sena v Police, above n 10, at [36] (emphasis added).
s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. …
[28] The Supreme Court acknowledged that imperfection of expression is practically unavoidable and stressed that appellate courts should assess the adequacy of reasons contextually, allowing for the need to balance the prompt determination of criminal cases. The adequacy of reasons must be assessed in light of the type of case and issues involved, including the seriousness of the charge.13
[29] A reasoned judgment must contain an adequate survey of the facts, the critical issues must be identified and an explanation given of how and why those issues have been resolved.14 Proof of the charge in this case depended entirely on selecting one inference over another, or at least ruling out the reasonable possibility of the inference that the laptop was not delivered due to postal error. An inference is a logical and rational conclusion drawn from reliable evidence. It goes without saying that an inference must be reasoned. Preferably, that reasoning should be explicitly reflected in the judgment. That was not done here.
[30] I agree with Mr Brennan that, by referring to Mr Johnson’s conduct in January 2018 as “outrageous in any commercial sense”, the Judge appears to have been providing reasons for his finding that Mr Johnson was a “dishonest person”. It is evident from the Judge’s exchange with Mr Johnson following re-examination that the Judge found Mr Johnson to be a dishonest witness, at least in part on the basis of his answers to the Judge’s questions.
[31] That said, Mr Johnson’s decision not to offer a refund to the complainant after being charged with an offence is perhaps more properly a reflection of his morality rather than his credibility. Furthermore, in light of the Supreme Court’s emphasis in Sena v Police on the provision of reasons for credibility findings,15 little weight can
13 At [37].
14 Bublitz v R [2019] NZCA 364 at [75].
15 Sena v Police, above n 10, at [36].
be afforded to a credibility finding of a trial judge in circumstances where an appellate court finds that inadequate reasons were given for that finding.
[32] In any event, having reviewed the formal written statements, which were read into the evidence, and the (rather short) transcript of evidence in its entirety, I am satisfied no miscarriage of justice arises.
[33] The first feature of note in this case is the evidence from Ms Read concerning Mr Johnson’s Trade Me account. The account was created on the very day Mr Johnson listed the laptop for sale, and a mere two days before it was purchased by the complainant. Mr Johnson created the account under a different first name and with an incorrect date of birth. The account operated for a period of only two weeks before it was shut down by Trade Me on suspicion of being fraudulent. Although four other listings were made around the same time as the laptop, it appears that no further listings were made after payment was received from the complainant. This evidence supports an inference that Mr Johnson was attempting to conceal his identity and that the account was created for fraudulent purposes. I say that notwithstanding the other four transactions were apparently completed without any problem.
[34] The second feature of note is Mr Johnson’s conduct around the time of the transaction. No satisfactory explanation was ever provided for why Mr Johnson did not provide the complainant with the tracking number. The complainant requested the number on three occasions. Mr Johnson’s explanation that he did not check his emails very often did not address this concern. Mr Johnson was clearly aware the complainant had requested the tracking number because, on 8 June 2016, he promised to provide it but never followed through.
[35] The third feature of note is the unconvincing nature of some of Mr Johnson’s evidence. First, he said he only became aware the laptop had not been delivered when he was charged with this offence in January 2018. However, that does not square with the persistence of the complainant’s emails and the evidence Mr Johnson’s Trade Me account was disabled on 14 June 2016.
[36] Secondly, Mr Johnson was evasive and inconsistent when questioned about when he separated with his partner. Initially, he said in evidence-in-chief that it was four years ago, then said it could be three years. When pressed in cross-examination, he started by avoiding the question, then said he did not know, then said it “seems like 10 years ago”. At this stage the prosecutor clarified whether Mr Johnson and his partner were together at the time of the transaction, and Mr Johnson insisted that they were. He then said it was longer than three years ago. Notably, the trial took place in April 2019, less than three years after the alleged offending.
[37] Finally, Mr Johnson’s response to the Judge’s line of questioning was evasive and unconvincing. In particular, when pressed on why he did not refund the complainant in January 2018, Mr Johnson challenged the honesty of the complainant by suggesting, without any evidential basis, the complainant had in fact received the laptop and this proceeding was a dishonest attempt by him to obtain the laptop for free. Quite how that could be the case, given the complainant had paid for the laptop, was unclear.
[38] The last feature of note was the absence of evidence that Mr Johnson might naturally have been expected to call if he were innocent.16 In this regard, I refer to evidence from Mr Johnson’s previous partner. There was no admissible evidence that she did in fact post the item. While Mr Johnson’s evidence that she told him she had sent it was in the context of his being asked whether he had checked the item had been sent, he could reasonably have been expected to bring evidence that the laptop had been posted. Even if he and his former partner were no longer on good terms, she could have been subpoenaed to give evidence. In saying that, when regard is had to the other matters to which I have referred, there was sufficient evidence to enable the charge to be proved, even without relying on this adverse inference.
[39] Drawing the threads together, Mr Johnson’s evidence lacked credibility and failed convincingly to explain his actions in June 2016.17 In those circumstances, there were legitimate grounds for the Judge to prefer the inference that Mr Johnson never
16 See Trompert v Police, above n 6, at 358.
17 Although I do not take it into account, I take some comfort in the fact the trial Judge reached the same conclusion as to the general honesty of Mr Johnson as a witness.
sent the laptop and never intended to send it (if it even existed) when he listed it on Trade Me and subsequently accepted the complainant’s money. This was not guesswork or speculation, but a logical and rational conclusion reached after an assessment of all the evidence. It was not a case where the evidence would support two conclusions of similar weight. Accordingly, the Judge did not err by convicting Mr Johnson. There was no miscarriage of justice.
[40] The guilty verdict was supported by the evidence. In those circumstances, Mr Johnson cannot be said to have received an unfair trial.
Result
[41]The appeal is dismissed.
Thomas J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent
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