The Queen v Eric Lowe
[2002] NZCA 159
•10 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 24/02 |
THE QUEEN
V
ERIC LOWE
| Coram: | McGrath J Anderson J Glazebrook J |
| Judgment (On the papers): | 10 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
The appellant was convicted on his trial by a District Court Judge and jury in respect of an indictment alleging two counts of fraudulent use of a document for pecuniary advantage contrary to s229A(b) of the Crimes Act 1961. He was sentenced to two months periodic detention on each count and now appeals against conviction and sentence. The appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The appellant’s submissions have been confined to grounds stated in the Notice of Appeal with reference to a brief annexure. Relevant materials have been considered by the members of the Court who have conferred and agreed upon this judgment.
Each count related to a cheque drawn by the appellant and negotiated with shopkeepers for cash. The alleged fraudulent element in each case was the knowledge that the cheque would not be honoured on presentment because there were neither funds nor a credit arrangement with the appellant’s bankers to allow payment to be met.
The appellant had opened a cheque account with a nil balance and had proceeded to write a number of cheques without a credit arrangement in place. Some of these cheques were met but in due course a bank officer warned the appellant that the debit had to be reduced, no further cheques would be met, the appellant was not to draw cheques, and that default would lead to the closing of the account.
The appellant was undeterred. On 12 July 2000, only five days after he had been admonished by the bank, he approached a shop in Wellington and asked the proprietor to cash a cheque. It was after 5 p.m. He said he needed money to redeem his car which had been towed away. The appellant provided his address and telephone number and assured the proprietor that there were funds to meet the cheque. The proprietor cashed the cheque for $100. When the cheque was dishonoured the proprietor tried unsuccessfully to communicate with the appellant.
On 14 July 2000 the appellant approached the proprietor of another Wellington business with a request that a cheque for $80 be cashed. He said he had a problem with his car. Once more it was in the late afternoon or early evening, outside normal banking hours. He provided personal particulars, including his name, address and phone number and assured the proprietor that there was money in his account to meet the cheque. The proprietor cashed the cheque for $80 and, when it was dishonoured, also had difficulty making contact with the appellant.
The appellant gave evidence at the trial in support of a defence that he believed that he had a credit facility with the bank which would allow payment to be made.
The ground of appeal against conviction is that similar fact evidence was wrongly admitted at trial, pursuant to a pre-trial ruling. The ground of appeal against sentence is that it is too harsh in view of the small amounts involved and the fact that the victims were repaid before trial with a further consideration for their trouble.
The similar fact evidence was contained in the testimony of a tavern proprietor and the owner of a retail shop. On 14 and on 16 July 2000 the appellant approached the owner of the tavern with a request for cheques to be cashed. He assured the tavern owner that everything would be “all right” and provided personal particulars. On each date a cheque for $200 was cashed. Both were dishonoured on presentment although the tavern owner was able to make contact with the appellant by way of the provided phone number. On one occasion his assurance that he would see to the matter came to nothing notwithstanding several other attempts to get in touch with him.
The owner of the retail premises testified that on 19 July 2000 the appellant approached her just on closing up time with a story about needing money for his car which had been towed away and persuaded her to cash a cheque for $140. Once more his cheque was dishonoured on presentment and once more he proved difficult to contact when pursued.
The similar fact evidence was held admissible on the basis of its relevance to the issue of mens rea. There were striking similarities in relation to the excuse given, the timing of the requests, the assurances of money to cover the debt and the provision of personal particulars which did not facilitate contact with him after dishonour.
In sentencing the appellant the District Court Judge made it plain that he thought a lesson was needed in relation to honesty.
Discussion
We have no reservations about the admissibility of the similar fact evidence. In the space of one week the appellant approached four different business people with a story line which a Court would be entitled to regard as entirely dishonest and calculated both in nature and timing to exploit sympathy. In conjunction with the bank officer’s evidence about the status of the account and the direction not to issue more cheques, the evidence of a dishonest method in relation to negotiating the cheques was highly relevant to the issue of a dishonest state of mind. Concerning the sentence, we are not disposed to interfere. Reparation was of course a mitigating factor but the Judge was entitled to emphasise personal deterrence in the case of a mature, intelligent and educated man as Mr Lowe is, with some previous convictions for dishonesty.
Result
For the above reasons the appeal against conviction and sentence is dismissed.
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