The Queen v Clive Jordan
[2002] NZCA 302
•9 December 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 253/02 |
THE QUEEN
V
CLIVE JORDAN
| Hearing: | 4 December 2002 |
| Coram: | McGrath J Baragwanath J Salmon J |
| Appearances: | J N Bioletti and S Cassidy for Appellant J C Pike for Crown |
| Judgment: | 9 December 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J |
The appellant was convicted following a jury trial in the District Court at Auckland on 18 counts of using with intent to defraud a document capable of being used to obtain a pecuniary advantage, namely a goods and services tax return, for the purpose of obtaining a pecuniary advantage for himself or another (Crimes Act 1961 s229A). He appeals against conviction on the ground that it is an element of that offence that the accused obtained the document unlawfully. For the reasons that follow we are satisfied that is not so.
The facts
The appellant was a director of two companies, Standard 105 Ltd and Interface Marketing Ltd, each of which had secured registration under the Goods and Services Tax Act 1985. The Crown alleged that the appellant also caused to be registered two further companies, Hirdmman International Ltd and Hirdmman Technology Ltd, for each of which one Terrance Jackson Smith was listed as the sole director. Both were GST registered.
The appellant prepared and filed GST returns on behalf of the Standard and Interface companies, claiming refunds of $979,079.69 in relation to alleged transactions with the Hirdmman companies, exhibiting invoices purporting to record the purchase of jewellery from them. It was the Crown case that the Hirdmman companies did not conduct any jewellery business; that the jewellery transactions never occurred; and that the appellant incorporated the Hirdmman companies and invented “Terrance Smith” to allow fraud on the Crown to be committed.
The jury by their verdicts accepted the Crown case.
The argument
In support of the appeal Mr Bioletti and Mr Cassidy submitted that s229A, added by s4 of the Crimes Amendment Act 1973, appears under the general heading “Crimes Resembling Theft” which precedes the group of sections comprising ss228‑233 and that by s5(3) of the Interpretation Act 1999 that fact may be considered in construing s229A. They argued that theft and analogous offences such as conversion require asportation or unlawful movement of some thing, and s229A being a “crime resembling theft” must contain such an element. On that premise it was submitted that, since GST forms are readily and lawfully available, the appellant did not obtain them unlawfully and consequently his use of them did not infringe s229A. It was argued that support for the contention is to be found in the legislative history.
In his written submission Mr Pike for the Crown relied upon the plain language of the section. We found it unnecessary to hear from him orally.
The legislation
The material parts of s229A provide:
Taking or dealing with certain documents with intent to defraud–
Everyone is liable to imprisonment … who, with intent to defraud, -
(a) Takes or obtains any document that is capable of being used to obtain any… pecuniary advantage; or
(b) Uses or attempts to use any such document for the purpose of obtaining,… any pecuniary advantage…
Section 229A appears under the heading “Crimes Resembling Theft” among the following other provisions:
228 Conversion or attempted conversion of motorcars, etc
229 Being in possession of instrument for conversion
…
230Criminal breach of trust
231Fraudulently destroying document
232Fraudulent concealment
233Bringing into New Zealand things stolen, etc
Section 5 of the Interpretation Act provides:
5 Ascertaining meaning of legislation
(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.
The report of the Criminal Law Reform Committee
We have underlined material parts of the report of the Criminal Law Reform Committee:
Report
of
The Criminal Law Reform Committee
THEFT AND FRAUDULENT USE OF CREDIT
CARDS AND AIR LINE TICKETS
The Committee was asked to consider what changes, if any, are necessary in our criminal law in respect of the theft or unauthorised use of such documents as credit cards and airline tickets, which are not themselves of any value but afford the opportunity for frauds on an exceptionally large scale.
The problem has not become serious in New Zealand, but it had become sufficiently serious overseas by 1964 for the formation in that year of the Fraud Prevention Group within the International Air Transport Association.
The person who steals a credit card or airline ticket is of course guilty of the offence of theft (s.220 of the Crimes Act 1961) and there are other offences which could in some circumstances be used for the prosecution and conviction of a person who used one of these stolen documents, for example obtaining by a false pretence (s.246) and personation (s.248). The maximum punishment for theft is, however, except in certain specified cases, dependent on the value of the stolen article and in the case of credit cards and airline tickets would not be more than 3 months’ imprisonment; and the other two offences are restricted in their application. The offence of false pretences is applicable only in relation to a valuable security, or any document that may afterwards be dealt with as a valuable security, or anything capable of being stolen; so that it would not be appropriate where what was obtained was, for example, overnight accommodation or aeroplane transport. The offence of personation requires an intent to obtain possession of or title to any property, or any qualification, certificate, diploma, licence or benefit; and it would be difficult to bring the sort of advantage that credit cards or airline tickets would be used to procure within the ambit of the term “benefit” when used in conjunction with the preceding class-words.
The inadequacy of the present law should thefts and frauds of the type in question become at all frequent is therefore obvious. Moreover it causes difficulty where, as in the case of theft of cheques, there may be more than one view as to the basis on which the value of the thing stolen should be assessed. See R. v. Bennitt [1961] N.Z.L.R. 452.
The Committee is of the opinion that the best solution to the problem is to enact a completely new section in the Crimes Act, worded widely enough to apply not only to credit cards and airline tickets but also to any other type of document with which the holder can obtain a benefit or any valuable consideration, and covering every type of action in respect of such a document which is presently criminal (e.g. theft, conversion, obtaining by a false pretence) or is done for a fraudulent purpose.
We attach to this report a draft provision which we suggest would be satisfactory for the purpose.
THE CRIMES ACT 1961
Crimes Resembling Theft
Suggested Amendment
[Then followed the draft of s229A which was enacted without amendment]
Because Parliament adopted the report of the Criminal Law Reform committee it is unnecessary to refer to the Hansard commentary upon it.
Discussion
The appellant’s argument is not supported by either the language of the section or the report of the Committee.
Subclause (a) of s229A does include the element of taking or obtaining a document. But that element is absent from subclause (b) which reduced to its essentials requires proof that an accused:
…[1] with intent to defraud… [2] uses… any… document [that is capable of being used to obtain any… pecuniary advantage] [3] for the purpose of obtaining, for himself or for any other person, any… pecuniary advantage…”
Each of the three elements we have numbered was plainly established.
The appellant’s submission is that in addition to these three there is a fourth element to be inferred from the context, that the accused converted or otherwise unlawfully obtained the document the subject of element [2]. But it is plain from examination of ss228-234 that the general heading “Crimes Resembling Theft” preceding s228 is not confined to crimes so closely resembling theft as to contain its element of asportation or physical movement of an item as an element of the crime. Section 231 “Fraudulently destroying document” includes concealing a document for a fraudulent purpose. Section 232 “Fraudulent concealment” includes concealing anything capable of being stolen with fraudulent intention, neither of which entails any element of movement. The general heading “crimes resembling theft” is a helpful aid to finding one’s way through the statute. But it is much too broadly expressed to offer any guidance on the present issue.
The internal antithesis within s229A between (a) taking or obtaining any document and (b) using a document makes plain that the elements of the former are not synonymous with or to be imported into the latter, which will ordinarily be committed after a taking or obtaining has taken place.
Further, it is clear from the passages we have emphasised in the report of the Criminal Law Reform Committee that it not only did not contemplate the fourth element contended for by the appellant but was at pains to go beyond
…[what] is presently criminal (e.g. theft, conversion…)
to provide
a completely new section…worded widely enough to apply …to any …type of document with which the holder can obtain a benefit…and covering every type of action in respect of such a document which…is done for a fraudulent purpose.
During the 29 years for which s229A(b) has been on the statute book there has been no argument, let alone authority, to which we were referred supporting the appellant’s argument. Construed in the sense for which the Crown contends the provision has been found to be of considerable practical utility. The present facts provide a clear example of the public benefit of its use. Given the Court’s power to direct particulars, there is no reason for the general language of the provision to entail risk of abuse that might point to a narrower meaning than is conveyed by the plain language of the measure.
It follows that we cannot accept the novel argument advanced in support of the appeal.
Result
The appellant’s challenge to the convictions fails and the appeal is dismissed.
Solicitors
Jeremy Bioletti, Auckland for Appellant
Crown Law Office, Wellington for Crown
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