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R v Morley

R v Morley

Case [2009] NZCA 618 21 December 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA84/2009
[2009] NZCA 618
THE QUEEN
v
VAUGHAN WAYNE MORLEY
Hearing:12 August 2009

Court:Baragwanath, Randerson and Panckhurst JJ
Counsel:J L Smylie for Appellant
C R Walker for Respondent

Judgment:21 December 2009 at 3pm

JUDGMENT OF THE COURT

AThe appeal is allowed and the convictions on counts 1, 3 and 4 are quashed.

B The appeal against conviction on count 2 is dismissed.
CThe appeal against the sentence of three years imprisonment on count 2 is allowed. The sentence is quashed and a sentence of 21 months imprisonment is substituted.
DThe minimum period of imprisonment of 18 months is quashed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] The appellant was convicted on 10 December 2008 after jury trial before Judge Rea in the District Court of four counts of causing loss by deception contrary to s 240(1)(d) of the Crimes Act 1961. This was a retrial following a successful appeal against conviction at his first trial: [2007] NZCA 357. On 23 January 2009 Judge Rea sentenced the appellant to three years imprisonment with a minimum period of imprisonment of 18 months. The appellant now appeals against conviction and sentence.
[2]       At the conclusion of the hearing of the appeal we reserved our decision and granted bail to the appellant without opposition from Mr Walker. We were advised that, by that time, the appellant had served 451 days (or approximately 15 months) of the minimum term of 18 months imprisonment imposed upon him.
[3]       We also sought and have received from the Crown further particulars of aspects of the Crown case. We are grateful to Mr Walker for the comprehensive additional materials received.
The conviction appeal
[4] Section 240 of the Crimes Act is a new provision forming part of Part 10 as substituted with effect from 1 October 2003 by s 15 of the Crimes Amendment Act 2003. The repeal and replacement of the former Part X of the Crimes Act has taken some time. The analogue of what is now s 240 was the former s 246, which made it an offence to obtain property by false pretences. It provided:
246     Obtaining by false pretence
15 May 1986 to 30 September 2003
(1)Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to defraud or cause loss to any person by any false pretence, causes or induces any person to execute, make, accept, endorse, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal on any document in order that it may afterwards be made or converted into or used or dealt with as a valuable security.
(2)Everyone who, with intent to defraud by any false pretence, either directly or through the medium of any contract obtained by the false pretence, obtains possession of or title to anything capable of…

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 R v Morley

Details

AGLC: R v Morley [2009] NZCA 618
Case: [2009] NZCA 618
Decision Date: 21 December 2009

CaseChat Overview and Summary

In this appeal, Vaughan Wayne Morley challenges his convictions on four counts of causing loss by deception. The convictions arose from four separate transactions in which Morley signed agreements to purchase properties but failed to settle. The Crown argued that Morley represented that he had the means to fulfil the contracts when he knew this was not the case. The Court of Appeal allowed the appeal against conviction on counts 1, 3, and 4, and quashed those convictions. The appeal against conviction on count 2 was dismissed. The Court also reduced the sentence for count 2 from three years to 21 months imprisonment, and quashed the minimum term of 18 months imprisonment. The Court held that in order to establish the offence of causing loss by deception, the Crown must prove that the deception caused a relevant loss to the victim. The loss must be a direct consequence of the deception, and not merely a result of the victim's own actions taken in reliance on the deception. The Court found that the losses in counts 1, 3, and 4 were not directly caused by Morley's deception, and therefore could not sustain those convictions. The Court also held that the loss in count 2 was properly characterised as a direct loss, and therefore the conviction on that count was upheld. However, the Court reduced the sentence for count 2 to 21 months imprisonment, and quashed the minimum term of 18 months imprisonment.

Orders