Reddy v Police
[2013] NZHC 2196
•28 August 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2012-404-402
[2013] NZHC 2196
BETWEEN KATIE JANE REDDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
| Hearing: | 2 July 2013 |
Counsel: SupplementarySubmissions: | M Ryan for Appellant W N Fotherby for Respondent 18 July, 16 August for Appellant 21 August for Respondent |
Judgment: | 28 August 2013 |
JUDGMENT OF RONALD YOUNG J
Introduction
[1] Ms Reddy was convicted of attempting to access a computer system dishonestly, without claim of right, in order to obtain a pecuniary advantage[1] and secondly, making a false statement being reckless as to whether wasteful deployment of Police personnel would result.[2] She appeals against her conviction on both charges.
[1] Crimes Act 1961, s 249(1)(a).
[2] Summary Offences Act 1981, s 24(b)(i).
[2] The first charge relates to an incident on 27 March 2012 when Ms Reddy phoned the ASB bank, correctly answered security questions for her sister’s account, changed the password and transferred $20,000 from the savings account to the current account. The police case was that the appellant then attempted to transfer
REDDY v POLICE [2013] NZHC 2196 [28 August 2013]
money from her sister’s account. However, a bank security system called NetCode sent her sister a text which had the effect of alerting her to the proposed transfer. The appellant’s sister contacted the bank who ensured the transfer did not occur.
[3] The second charge relates to an incident on 14 March 2011. Ms Reddy’s father received texts from a phone belonging to Ms Reddy indicating that her life was in danger if Mr Reddy did not pay money to his daughter. Mr Reddy paid the money and contacted the Police to say he believed his daughter had been kidnapped. The Police case was that Ms Reddy’s life was never in danger and that this was all a device to obtain further money from Ms Reddy’s father.
The District Court decision
[4] In the District Court the Judge identified the elements of the first charge as:
(a) that the appellant attempted to access a computer system;
(b)that she did so dishonestly and without claim of right; and
(c) that she thereby attempted to obtain property or privilege. [5] He concluded that each of the elements had been established.
[6] The Judge said:
The defendant took significant steps to break into her sister’s account and was prevented by her sister suspending her account. There is insufficient evidence to back up the e-mail she sent to her father, that she was trying to stall those threatening her and sent a text message to her sister. The sister’s evidence was that she suspended her account and there is no mention of a text message from her sister.
[7] The Judge was satisfied that this was an attempt, by accessing a computer system, to dishonestly obtain $20,000 from her sister’s account. The Judge concluded that despite the appellant’s claim she had not attempted to stop the transaction.
[8] The appellant at trial raised the defence of compulsion. She said she was forced to access the computer system and forced to transfer the money by others. The Judge in the District Court concluded that there was no evidential foundation for the defence of compulsion because “there was no evidence of immediate threats of death or grievous bodily harm” and “no evidence before me of the defendant’s belief”.
[9] As to the false statement charge, the Judge identified four elements to that charge. First, that the appellant had made a statement to another person; secondly, that the statement gave rise to serious apprehension for her safety; thirdly, that the appellant knew the statement was false and fourthly, the appellant made the statement with the intention of causing wasteful deployment or being reckless as to whether wasteful deployment of Police resources would occur.
[10] The Judge concluded that the defendant must have been at least reckless that the text messages from her phone to her father would cause wasteful deployment of Police resources given she would have known that her father was concerned with her welfare and would inevitably contact the Police.
[11] The Judge rejected Ms Reddy’s father’s evidence that the language in the texts was not his daughters saying he considered the father was a “distinctly unimpressive witness” and “clearly trying to cover for his daughter”. Whatever the father’s belief, however, the Judge considered that there was no credible evidence the appellant had been kidnapped or was in danger. He convicted the appellant on both charges.
Conviction appeal grounds
[12] Ms Reddy appealed her convictions on four grounds. But at the appeal hearing they reduced themselves to one ground of appeal with respect to the attempting to access a computer system for dishonest purposes. Counsel, however, did not concede any of the other points or the appeal with respect to the false statement charge but made no submissions on the other three grounds.
[13] The four grounds of appeal originally asserted were as follows:
(a)the prosecution had not proved the appellant had a dishonest purpose when she accessed her sister’s bank details electronically;
(b)the actions taken by the appellant were too remote to constitute an attempt with respect to the accessing a computer charge;
(c)the trial Judge made an error of law as to the requirements of the defence of compulsion; and
(d)there was insufficient evidence that the appellant made or caused to be made the false statement to her father about her kidnapping.
[14] As it turned out it was ground (a) of the appeal and an associated ground relating to impossibility (raised first in the High Court) was argued at the appeal. I deal with the three other grounds of appeal briefly only.
Remoteness
[15] First, were the appellant’s actions relating to her sister’s bank account too remote to constitute an attempt? Assuming for this purpose the Crown established the appellant’s dishonest intent with respect to accessing the computer charge then the evidence established that the appellant took every step required for a completed offence save the final step of actually obtaining the money. The appellant accessed a computer system, namely the bank system; she did so dishonestly and without a claim of right with respect to her sister’s bank account, intending to obtain some of the money in the account. She did not obtain the money but she attempted to do so.
[16] This illustrates that the appellant’s actions could not possibly be said to be too remote to constitute an attempt. As I have said, all of the elements of the charge save actually obtaining the money were undertaken. It was only the intervention by the appellant’s sister which prevented the appellant from completing the full offence. I reject this ground of appeal.
Compulsion
[17] As the trial Judge identified there was simply no evidence to establish the defence of compulsion. Section 24 of the Crimes Act 1961 as relevant provides as follows:
24 Compulsion
(1)Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.
[18] What must be established is that at the time of the commission of the offence Ms Reddy was subject to an immediate threat of grievous bodily harm or death from a person who was present at the time of the commission of the offence, here the offences of 14 and 27 March (the two offences the appellant faced).
[19] At its highest, the evidence which formed the basis of the allegation of compulsion related only to the false statement charge on 14 March. There was no evidence to support the claim with respect to the charge of accessing the computer system. There is no evidence with respect to either charge that at the time of the alleged offence, there was a threat of grievous bodily harm from someone present. Indeed, as the respondent points out the flow of text messages between the appellant and her father and the appellant and her friends at the time of the alleged threats, show the appellant talking easily with friends and arranging to buy further drugs.
[20] There was challenge as to the sufficiency of evidence to establish that the appellant sent the text messages to her father.[3] The context of the text messages illustrate the high likelihood that they were sent by the appellant to her father. The texts follow a series of texts between the appellant and her father where the appellant sought money from her father. Her father (ultimately) refused to provide the money. Not long afterward the alleged kidnapping and life threatening texts begin. Interspersed between these texts are texts from the same phone from the appellant to others seeking to buy drugs. None of those texts illustrate the slightest concern
about the fact that the appellant is apparently being threatened and kidnapped. Hardly the actions of someone under threat of serious harm or death. The evidence points to the appellant as the author of the text messages.
[3] At [3]
[21] While it may not be essential for a defendant alleging compulsion to give evidence to establish the facts said to give rise to the defence, it is likely to be difficult to establish in the absence of such evidence. Here it was effectively impossible. The appellant claims that only she and person making the threats were present at the time. And so, without evidence from the appellant, there was simply no evidence to establish the facts on which compulsion was said to arise.
[22] I, therefore, reject the claim that the Judge misapprehended the defence of compulsion. There was no evidence to establish the defence at trial. I reject this ground of appeal.
Insufficient evidence that the appellant made the false statement
[23] For the reasons I have given[4] there is ample evidence to infer (beyond reasonable doubt) it was the appellant herself who sent the text messages relating to the threats of violence and kidnapping. The sequence that I mentioned above and the fact that all of the texts were sent from a phone habitually used by the appellant support the position. The Judge rejected the evidence of the father who claimed the style of the text messages was not his daughter’s, understandably, as lacking credibility.
[4] At [20]
[24] I am satisfied the Judge was entitled to infer that the texts which led to the charge of making a false statement had either been sent directly by the appellant or at her instigation. The appeal with respect to the second charge is, therefore, dismissed.
Attempting to dishonestly access a computer system
[25] The appellant admits that she accessed her sister’s account without her sister’s approval. She accepts that she lied to the bank and impersonated her sister which, in turn, enabled her to reset the password with respect to her sister’s account.
This, in turn, enabled her to transfer money from her sister’s business trading account to her sister’s current account. The police case at trial was that the appellant then attempted to transfer the $20,000 to her account but was prevented from doing so by the NetCode system at the bank.
[26] The appellant says, however, that she was aware that before such a transaction would be approved by the bank, the bank would send to her sister’s cell phone a prearranged code (the NetCode system). If her sister activated the code the transfer would proceed. If, however, her sister failed to do so then no transfer would occur and no money could be taken from the account.
[27] The appellant’s case was that it was clear that she understood no money would be transferred from her sister’s account unless the code was approved. And in fact no money was removed from her sister’s account. This was relevant in two ways:
(a)it illustrated that the appellant did not have an intention to dishonestly obtain the $20,000. If she had intended to do so then it would have been a simple matter for her to have reset the phone number on her sister’s bank account to her own number so that the bank code would be sent to her and she could facilitate the transfer;
(b)in the circumstances it was impossible for her to have committed the offence (a matter not raised in the District Court), that is, she could never have obtained any “property” as a result of her access to her sister’s account even if she had acted dishonestly.
Impossibility
[28] As to the second point,[5] if there is any impossibility arising from the facts of this case, it was factual rather than legal impossibility and so of no consequence for the conviction.[6]
[5] At [27](b).
[6] R v Donnelly [1971] NZLR 980 and R v Sew Hoy [1993] 10 CRNZ 581 (CA).
[29] I agree with the police submissions that the “defence” of impossibility does not arise in this case in any event based on the findings of the District Court Judge. If the appellant had continued her actions she could have transferred the $20,000 from her sister’s account to her account thereby committing the “full” offence.
[30] Here, the appellant was either prevented by the bank security system from obtaining the money or by her own ineptitude in failing to change the phone number to which the NetCode advice went (her sister’s) to her own cell phone number. Either way the offence was not “impossible” to commit. To emphasise the point, the appellant failed to commit the offence because she failed to ensure that the text advice of the proposed transfer out of her sister’s account went to the appellant’s cell phone. Because the NetCode advice went to her sister’s cell phone her sister was able to stop the transaction.
[31] Even if it was accepted that the appellant could not have committed the offence because of the NetCode security process, this was a factual impossibility rather than a legal impossibility. Based on the authority of Donnelly and Sew Hoy, factual impossibility does not assist the appellant. I note the appellant in her submissions accepted that the only alleged impossibility in this case was a factual impossibility rather than a legal impossibility.
[32] For the reasons given, I reject this ground of appeal.
Dishonest intent
[33] The final ground of appeal relates to whether the District Court Judge was correct to conclude the police had proved dishonest intent when the appellant accessed the ASB banking system. The appellant submits that the police could not prove dishonest intent. The appellant had offered a reasonable explanation for her actions consistent with her innocence. If she had intended to dishonestly access her sister’s account she would have ensured that any computer generated advice of a transfer of funds would go to her and not her sister’s cell phone.
[34] The appellant says the evidence established that she could have changed the cell phone number from her sister’s number to her own number on her bank account.
If she had done so then her sister would not have received the NetCode alert message. The message would have been sent to the appellant. She, in turn, could have approved the transfer and the money would have been transferred to her.
[35] The appellant’s case is, therefore, the fact that she did not change the cell phone number illustrated that she had no intention of dishonestly obtaining the money from her sister. Thus, the police could not prove beyond reasonable doubt at the time she accessed her sister’s account, she intended to dishonestly obtain money.
[36] It is trite to say that an accused person very rarely overtly expresses their intent accompanying their actions. Intent can be inferred from established facts as long as the trial Judge is satisfied that the intent required to be proved by the prosecution has been established beyond reasonable doubt. Here, the police said at trial that the proper inference from the facts was that the appellant was intending to act dishonestly when she accessed her sister’s account by intending to steal her sister’s money.
[37] The police say that the appellant’s whole story of kidnapping and threats was a fabrication designed to obtain sympathy from her father so that he would give her more money. This illustrated that the appellant was desperate for money to pay her drug debts and buy more drugs. And so the appellant’s actions in accessing her sister’s bank account had to be seen in that light. She was not accessing her sister’s account on instructions from her kidnappers. She was doing so in circumstances where the evidence established she was desperate for money for drugs and to pay drug debts.
[38] Further, the appellant had tried to transfer money from her sister’s account to her own account but had only been stopped by the NetCode system. The police say the appellant had tried to ensure that any NetCode text would be sent to her cell phone by putting her cell phone numbers on her sister’s account when she accessed the account. However, the police say it was either naivety or incompetence that resulted in the text message from the bank for NetCode being sent to her sister’s phone rather than the appellant’s own phone.
[39] The appellant stresses that she could easily have amended the details on her sister’s account to send the NetCode advice to the appellant rather than her sister. She says the fact she did not do so strongly supports her claim she had no dishonest intent.
[40] I am satisfied there was ample evidence to justify a conviction for this offence and in particular sufficient evidence to establish beyond reasonable doubt the appellant’s dishonest intent when she accessed her sister’s bank account.
[41] Given the Judge’s understandable rejection of the appellant’s claim to have been kidnapped and threatened, the appellant’s claimed justification for accessing her sister’s bank account disappeared. She was not trying to access her sister’s bank account to satisfy her kidnappers or indeed anyone else threatening her.
[42] I agree with the respondent that the appellant illustrated a desperate need for money. The text exchanges with her father and her attempt to extract money from him illustrate the point. She needed money for drugs and to pay drug debts. I agree with the police that this is evidence relevant to intent.
[43] Secondly, there was evidence that the appellant transferred $20,000 between her sister’s to her bank accounts and her actions were only thwarted when she tried to transfer the $20,000 to an “outside” account.
[44] When the appellant unlawfully accessed her sister’s account she added her own cell phone numbers to her sister’s numbers as cell phone numbers which would be sent the NetCode code on any proposed transfer of funds. This illustrated the appellant did intend to have the NetCode text sent to her phone. The fact this did not occur seems to have arisen because of the appellant’s failure to delete her sister’s number from NetCode.
[45] The evidence of the operation of NetCode at trial, did not clearly establish whether it operated both for transfers between the appellant’s sister’s accounts as well as between the sister’s account and a third party account. But the evidence did
establish that a transfer over a certain amount of money (in this case $500) would not occur unless approved by the account holder through the NetCode system.
[46] The appellant’s sister believed that transfers between her accounts were covered by the NetCode system. However, the bank transactional information on the appellant’s sister’s bank statements appeared to contradict this. The $20,000 transfer between the appellant’s sister’s accounts appears to have taken place without any NetCode approval required. The transaction is recorded as having been processed by the bank. After the processing there is a record of a 20 cent debit for a NetCode text against the account to which the money was sent. However, as counsel for the police pointed out, this debit for the text appears to have occurred after the transfer of the
$20,000 between the accounts. It is, therefore, more likely that the 20 cent text was a NetCode text sent when the appellant tried to transfer money from her sister’s account (the account to which the $20,000 had been transferred) to her own account or one controlled by her. The appellant’s sister then contacted the bank and advised that no such transfer should be approved. The account records that no such transfer in fact occurred. Later that day, the $20,000 transfer between the accounts was reversed.
[47] If the NetCode text related to the proposed transfer between the appellant’s sister’s accounts then the bank statements would not show a completed transfer of the $20,000. The text required account holder approval before any transfer. When the appellant’s sister received a NetCode text she contacted the bank and said no proposed transfer should take place. Given there had been a transfer between her accounts this strongly suggests the NetCode text did not relate to this transfer. The text fee of 20 cents was after the transfer between accounts was completed. This suggests the text related to another subsequent transfer. The police case is that this NetCode text related to an attempt by the appellant to transfer $20,000 from her sister’s account to an account controlled by the appellant.
[48] Support for these inferences comes from the appellant’s text sent to her father sometime shortly after the appellant had access to her sister’s account and after she had transferred the $20,000. In a text to her father the appellant appears to say that she has transferred the $20,000 between her sister’s accounts and that her sister will
get notification of the further proposed transfer out of her account by NetCode which will prevent the transfer. This evidence together establishes that the appellant did attempt to transfer the $20,000 to her own account.
[49] I am satisfied therefore that there was sufficient evidence on which to infer the appellant had a dishonest intent when she accessed her sister’s bank accounts. The combination of her need for money, her access of her sister’s bank account, the transfer of money between accounts and the attempt to transfer money out of the account altogether, overwhelmingly points to a dishonest intent. The fact it may have been a more effective crime if the appellant had manipulated the NetCode system to ensure the NetCode text was sent to her does not distract from the evidence establishing dishonest intent.
[50] I reject this ground of appeal and therefore the appeals against conviction.
Ronald Young J
Solicitors:
M Ryan, Barrister, Auckland
Meredith Connell, Barristers & Solicitors, Auckland
0
0
0