L v Police HC Rotorua CRI 2009-463-26

[2009] NZHC 637

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-26

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 May 2009

Appearances: P T Birks for Appellant

C H Macklin for Respondent

Judgment:      28 May 2009

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Rotorua

L V POLICE HC ROT CRI 2009-463-26  28 May 2009

[1]      On  25  February  2009  L    was  convicted  of  collecting,  on  27

November 2009, by a false pretence, by portraying himself as a charity collector. He was ordered to come up for sentence if called upon within six months.

[2]      In the most general sense Mr L   puts in issue the ability of the police to arrest and charge him with the offence of which he was convicted and this Court’s ability to convict and sentence him for such conduct on his part, the purpose of which was to alleviate poverty.

[3]      Two issues are taken on his behalf as to the conviction. The first is that the information on which he was convicted is a nullity. It omitted an essential ingredient, that he was collecting ‘alms, contributions or subscriptions’. The second is that the evidence did not suffice to show any dishonest intent on his part.

Context

[4]      The sole witness for the prosecution, Constable McLaughlin, on Thursday 27

November 2008, at some time after 6 pm, saw Mr L   walking up a driveway in La Trobe Place, Utuhina, Rotorua. Immediately he emerged the constable spoke to him. He advised Mr L   of his right to remain silent and to advice and asked him what he was doing.

[5]      Mr L  , who was wearing a sash and two home made badges, one saying

‘authorised only’ and the other ‘collector’ said that he was collecting charitable donations for victims of civil injustice and that he was authorised to do so under s 58 of the Social Securities Act 1964.

[6]      Constable  McLaughlan  asked  him  what  he   said   to   those   whom   he approached.  Mr  L    said  he  asked  them  whether  they  would  care  to  make  a donation to charity and would tell them more if they asked. He would show them a card or cards to the effect that he was collecting for victims of civil injustice. He explained to the constable that he was one.

[7]      Mr L   said that he had no income and relied on donations for groceries and laundry but not for rent. The donations he received, he said, supplemented income he was hoped to obtain as an auto servicing consultant. He accepted he was not a charitable organisation. He claimed to be an authorised donee. In truth, he said, he was a beggar but he did not tell anyone that he was. He relied on s 58 of the Social Security Act 1964.

[8]      Constable  McLaughlan  then,  he  said,  arrested  Mr  L    and  seized  his satchel, his collecting net, a knife, an envelope containing printouts and introductory letters, and $10.80.

[9]      Mr L   elected to give evidence. He collected donations publicly, he said, as an alternative to a benefit so that he could have money to live on. Either he or Constable McLaughlin produced the materials he showed those to whom he spoke. The most accessible asks this question:

care to make donation of charity? for victims of civil injustice forced to suffer poverty

by independent government departments which stop entitlements to benefit

show only kindness at all times

In the material was a claim to be authorised to seek donations under s 58 of the

Social Security Act 1964.

[10]     The Judge described the issue he had to resolve as being whether it had been proved sufficiently that Mr L   was collecting by a false pretence, by portraying himself as a charitable collector.

[11]     Mr L  , the Judge said, portrayed himself as a collector. His sash suggested that. More, he admitted that he presented himself in that way and, though he was a beggar, did not admit to that. He held himself out to be what he was not. He knowingly collected by a false pretence.

Incomplete information

[12]     The first point taken is that the information discloses no offence. Section 15 of the Summary Offences Act 1981, the offence alleged, strikes against seeking donations by false pretence and says this:

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $1,000 who solicits, gathers, or collects alms, subscriptions, or contributions by means of any false pretence.

[13]     The information on the basis of which Mr L   was convicted says rather this, that on 27 November 2008 he ‘collected by means of a false pretence namely portrayed himself as a charity collector’. There is no reference to what he collected, whether it was ‘alms or subscriptions or contributions’.

[14]     This point was not taken before the Judge. As Mr Birks has explained, until shortly before the hearing Mr L   was representing himself and he stepped in at the last minute. But it must be resolved. If the information did not disclose an offence and is a nullity then the conviction cannot stand. The issue is rather whether nullity it is.

[15]     One way that this might have been resolved, had the point been taken before the Judge, would have been by way of amendment. That course is not open on this appeal and, moreover, if no offence were disclosed, the power to amend could not have been invoked. Instead it must be assessed, as it can be on this appeal, under s

204 of the Summary Proceedings Act which says, to the extent that it applies:

No information … and no process or proceeding shall be … held invalid … by reason only of … any omission unless the Court is satisfied that there has been a miscarriage of justice.

[16]     The  section  is  to  be  given  a  wide  reading,  consistent  with  its  curative purpose, Cooke J said in Police v Thomas [1977] 1 NZLR 109, 121, CA. He went on to add this, however, speaking of the possibility of nullity:

No doubt s 204 is unavailable if a defect is so serious as to result in what should be stigmatised as a nullity. But nullity or otherwise is apt to be a question of degree: … in practice the questions of miscarriage of justice and nullity will often tend to merge.

[17]     An instance of a case where an information has been found so deficient as to be a nullity requiring to be struck down is Muirson v Collector of Customs [1982] 2

NZLR 506. There Greig J said, at 510, that it was the rare and extreme case in which the information disclosed no offence. Consequently it could not be amended and s 204 could not save it. Is the present information as deficient?

[18]     The omission to state in the information what Mr L   was collecting is more than the omission of a particular of fact. It is the omission of a part of an element. Section 15 speaks of collecting payments that may be voluntary or, conceivably, obligatory, within the categories ‘alms subscriptions or contributions’. Simply to allege collecting without saying what was collected is to omit a particular the section itself specifies.

[19]     That this omission is fatal to the information is not, however, to be assumed. An information must comply as to form with s 15 of the Summary Proceedings Act and as to substance with s 17; and the latter is not highly prescriptive. What it says is this:

Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.

[20]     Section 17, McCarthy J said in R v Wyatt [1966] NZLR 1118, 1133, makes two things clear. One is, as one might expect, what the section itself says, that the particulars must be sufficient to identify the act or omission alleged and the transaction. The other is perhaps more significant. It is not essential, McCarthy J said, to state the offence alleged in the very words of the section.

[21]     That is consistent, to my mind, with what Cooke J had to say in the Thomas case. There is no hard and fast answer. It is all a matter of degree and a matter whether there has been an injustice.

[22]     Here I do not consider there has been any injustice. The particular, what was collected,  may have  been  omitted.  But  that  leaves  fully  intelligible  the  general allegation, that Mr L   collected by a false pretence, portraying himself as a charity collector. In the nature of things he was seeking charity from members of the public.

That could only have payments lying within the categories ‘alms subscriptions or contributions’. The offence as alleged, taken as a whole, supplied the omission.

[23]     Moreover, in a wider sense there was no injustice because Mr L   was fully aware of what was alleged against him. The statement of facts on which the police would have relied, had he pleaded guilty, which he received before the case went to hearing, said this:

He was going door to door asking for donations for charity for victims of civil injustice. When asked who the money went to he said that he was the only beneficiary of this group and that he had collected at least $10 during the evening.

False pretence

[24]     The second point taken was first put on the basis that the police had to exclude a claim of right; that Mr L   relied on s 58 of the Social Security Act 1964. But that is not an ingredient of the offence. What the police had to do was to prove that he had the requisite intent; that he knew that his representation was false and was dishonest. As to that the Judge’s finding was fully open to him.

[25]     First, as the constable recorded, when asked what he said when he knocked on someone’s door, Mr L   replied ‘care to make a donation of charity’; adding that he would only provide more information if they wanted and then that he was seeking money as set out on the card that he showed them.

[26]     To the question, ‘do you tell them straight up that your benefit was cut in June and you’re trying to collect money to get by on?’, he responded ‘No I give them this information here. If I start talking to them they just get annoyed and tell me to go away. I try to keep things as simple as possible without leading them astray of course’.

[27]     Later, when the constable asked, ‘So are you a charitable organisation?’, Mr L   replied ‘No at no time have I said that but I do admit that I am an authorised donee, but I am  not a donee organisation but that basically means I am a beggar but don’t tell anyone that’. To that the constable said, ‘but by the way you present

yourself door to door you would agree that it looks like that, you are presenting yourself  as  a  charity collector?’.  To  that  Mr  L    replied  ‘I  hope  so,  I’m  not presenting myself in any other way’.

[28]     That evidence, as the Judge concluded, carried only one inference; that Mr L   held himself out to be what he was not, a charity collector. He was, in reality, collecting for himself, not a charity. He knowingly made a false representation. The

appeal must be dismissed.

P.J. Keane  J