R v Morley
[2007] NZCA 357
•30 August 2007
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA114/07 [2007] NZCA 357
THE QUEEN
v
VAUGHAN WAYNE MORLEY
Hearing: 21 August 2007
Court: Chambers, Randerson and John Hansen JJ Counsel: C G Tuck for Appellant
H D M Lawry for Crown
Judgment: 30 August 2007
Reasons: 30 August 2007
JUDGMENT OF THE COURT
A The appeal is allowed.
B The convictions are quashed. C A new trial is ordered.
R V MORLEY CA CA114/07 30 August 2007
DAn order is made that the reasons for judgment are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication in a law
report or a law digest is, however, permitted.
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] The appellant was convicted after a jury trial in the District Court on four counts of causing loss by deception contrary to s 240(1)(d) Crimes Act 1961. Judge Tompkins presided over the trial and subsequently sentenced the appellant to an effective sentence of three years imprisonment with a minimum period to be served of 18 months.
[2] While represented at various stages by legal counsel, the appellant encountered difficulties in obtaining legal aid and represented himself at trial.
[3] The essential allegation by the Crown was that the appellant agreed to buy a series of properties in 2004 and 2005 knowing that he did not have the means to complete the purchases. None of the transactions proceeded and the vendors sustained various losses in consequence. There was, the Crown said, deliberate deception of the vendors by the appellant. And, the Crown said, this occurred without claim of right.
[4] The Crown produced evidence at trial to show the appellant had been adjudicated bankrupt on three occasions in New Zealand and once in Australia over a lengthy period from 1982 until September 2004. The vendors of the properties involved in the subject transactions were called, along with the real estate agents who represented them. As well, evidence of a similar fact nature was adduced. The appellant neither gave nor called evidence.
[5] At the conclusion of the hearing of this appeal against conviction we allowed the appeal with reasons to follow. These are those reasons.
The grounds of appeal
[6] Mr Tuck submitted for the appellant that a miscarriage of justice had occurred because the appellant was entitled to legal aid and ought to have been legally represented.
[7] The evidence before this Court establishes that the appellant’s initial application for legal aid was properly declined in February 2006 because the appellant’s application showed he had sufficient resources to meet the costs of representation. However, following the entry of a judgment against the appellant he declared himself bankrupt again on 26 July 2006. He then sought a review of the refusal of legal aid. An unsigned file copy of a letter from the Legal Services Agency dated 10 October 2006 was produced which invited the appellant to file a further application for legal aid. The appellant deposes that he did not receive a copy of this letter and that he did not hear again from the Agency. Unfortunately, there is no proof the appellant received the letter and, in response to our inquiry, counsel advised the Court there was no further information from the Legal Services Agency which could assist in resolving the issue one way or the other.
[8] It is common ground that, in the light of his bankruptcy, the appellant would have been entitled to legal aid. Mr Lawry for the Crown submitted that, by his failure over several months to take steps to obtain legal aid, the appellant effectively waived his right to representation. However, we are not persuaded by that submission given the absence of any proof that the appellant received the critical letter from the Legal Services Agency.
[9] We are satisfied that the absence of legal representation for the appellant at his trial has led to a real risk of a miscarriage of justice on several grounds:
Lack of particulars;
Late disclosure of documents by the Crown;
The inability of the appellant to effectively present his case; and
The introduction of similar fact evidence.
Lack of Particulars
[10] Section 240 Crimes Act 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
(b) in incurring any debt or liability, obtains credit; or
(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d) causes loss to any other person. (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 circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
[11] The Crown did not give particulars of the words or conduct said to constitute the deceptions alleged. In his summing up, the Judge summarised the Crown’s allegation as being that the appellant had made a false representation by entering into
the agreements and by representing that he had the ability to complete the purchase; making various representations to the effect that money was not an issue; representing that he had sold property; representing that he was entitled to funds; and showing various people a letter indicating he was entitled to shares in the National Australia Bank.
[12] However, there were some significant differences between the evidence relating to each of the four counts which, in our view, meant it was necessary to focus carefully on the specific circumstances of each case.
Count 1
[13] This involved a contract to purchase a property subject to the raising of finance. The finance was not raised and the transaction did not proceed. The vendor had no personal dealings with the appellant but dealt through an agent. The agent said she was shown some sort of trust account document showing the appellant had substantial funds – she thought about $4 million. He told her he had sold a property and was in a good position to buy. These statements were passed on to the vendor, but not in the same terms.
Count 2
[14] An unconditional contract to buy was signed by the appellant or nominee. A family trust associated with the appellant was subsequently nominated as purchaser. No deposit was paid despite promises to do so and the transaction did not proceed. The appellant suggested there was difficulty over an easement although the vendor said this was resolved. Again, the vendor had no direct dealings with the appellant. There is no evidence of any verbal representations alleged to have been false. The Crown allegation seems to have been based solely on the entering into of the agreement, knowing it could not be completed.
[15] No agreement for sale and purchase was ever signed. The Crown evidence was that the appellant advised verbally he wished to buy the property for his father- in-law. He wished to settle within a week and there would be “no hiccups”. The transaction did not proceed.
Count 4
[16] The evidence established that the appellant entered into an unconditional contract to purchase a property, but the transaction did not proceed. There was no evidence of any representation made by the appellant about his ability to settle or in any other respect. The appellant dealt solely with the agent and not with the vendor. It was the failure of this transaction which resulted in the summary judgment being obtained against the appellant and his subsequent bankruptcy.
Conclusion
[17] In our view, it was incumbent on the Crown to provide explicit particulars of the deceptive words or conduct relied upon in respect of each count. Where no contract was signed, some other form of false representation had to be proved. Where contracts were signed, the mere fact that they did not proceed does not constitute a misrepresentation. It would be necessary to establish a deception through the appellant entering into a contract knowing he had no ability to complete. The appellant was also entitled to know to whom it was alleged any oral misrepresentations were made. He was entitled to explore whether representations to the relevant real estate agent amounted to a deception practised on the vendor and whether they caused the admitted losses suffered by the vendor.
[18] Over a period of approximately seven to ten days before the trial, the police disclosed over 550 pages of written material to the appellant. For an unrepresented accused, this was unfair.
The inability of the appellant to effectively present his case
[19] It is clear from our reading of the transcript that the absence of legal representation significantly disadvantaged the appellant. His questioning of witnesses tended to be very brief and was not focused on issues which could have been of assistance to him including those available to him had particulars been given.
[20] As well, the issue of any possible “claim of right” was not explored. In his summing up, the Judge referred to the Crown prosecutor stating at the beginning of the trial that this was not an issue and the jury did not need to consider it. The appellant did not challenge this, but in our view this issue should not have been glossed over.
[21] The appellant did not call a witness who could have assisted him. During the period of the disputed transactions, the appellant was represented by a prominent and respected Auckland solicitor. The solicitor swore an extensive affidavit in support of an application for stay of the proceedings on the grounds of abuse of process. The application for stay was prepared at a time when the appellant was legally represented, but was then withdrawn on 31 August 2006, by which time the appellant was having to represent himself.
[22] Having read the affidavit, we consider it contains material which could have assisted the appellant by demonstrating that he had completed other transactions during the relevant period, including transactions in 2004 which required finance to be raised. This evidence could have assisted the appellant by demonstrating good faith or at least raising a reasonable doubt about it. The solicitor also deposed to the existence of a legitimate and unresolved dispute over the easement mentioned in the case of count 2 which could have amounted to a claim of right and he explained the
circumstances relating to the other counts. The appellant has sworn he did not call the solicitor out of embarrassment over fees issues, but, if legal aid had been obtained, it is possible this difficulty could have been overcome.
The similar fact evidence
[23] Finally, additional evidence was adduced on a “similar fact” basis. A challenge to this evidence was also withdrawn on 31 August 2006 when the appellant was unrepresented. There was evidence from two bank officers in 2001 (some three years prior) of applications for credit cards being declined. We have distinct reservations about the admissibility of this evidence. The evidence from the two bank officers was confined to applications by the appellant or his wife for credit cards which were declined. While they gave evidence of assets the appellant claimed at that time to have, the bank officers gave no direct evidence of the making of false or deceptive statements.
[24] Other “similar fact” evidence related to transactions which did not proceed but which were not the subject of charges. There was evidence of a transaction in Napier which did not proceed but this was because of a legitimate problem about the foundations to the property (a fact the appellant’s solicitor could have confirmed as well). And, there was evidence of another transaction in Auckland which did not proceed. In that case there was an issue about plastering work and no agreement was ever signed.
[25] In our view, the admissibility of much of this evidence was capable of challenge and it could also have been countered by the evidence of the appellant’s solicitor even if found to be admissible. We also note that the Judge did not state with precision in his summing up the respects in which the Crown alleged the evidence of discrete conduct was similar to the counts alleged.
Conclusion
[26] We were satisfied there was a real risk of a miscarriage of justice in the circumstances of this case. We confirm that the convictions on all four counts were quashed on 21 August 2007 and a re-trial was ordered.
Solicitors:
Crown Law Office, Wellington
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