The Queen v John Fowlds

[2000] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND CA222/00

THE QUEEN

V

JOHN FOWLDS

Hearing:	29 November 2000
Coram:	Thomas J Heron J Anderson J
Appearances:	Appellant in person J C Pike for Crown
Judgment:	13 December 2000

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

1. On 13 June this year the appellant was convicted on his trial before a District Court Judge and jury on one count that contrary to s 229A(b) of the Crimes Act 1961 he did on or about 14 June 1999 with intent to defraud use a document capable of being used to obtain a pecuniary advantage, namely a handwritten letter dated 14 June 1999, for the purpose of obtaining a pecuniary advantage.  He was fined $300 and ordered to pay reparation of $120 to the complainant.  He now appeals against conviction.

2. The document in question is a letter dated 14 June 1999 which the appellant wrote intending that it should be delivered by one of his sub-tenants, Mrs Muriel Apanui, to Work and Income New Zealand Limited (WINZ).  The purpose of the letter was to induce an advance to the appellant, by WINZ, of initial rental for Mrs Apanui’s sub-tenancy.  As will appear in the course of this judgment, the document was capable of being used to obtain a pecuniary advantage and was used by the appellant to obtain a pecuniary advantage.  The real issue at trial and in respect of this appeal concerns the appellant’s intent in using the document.  The Crown case at trial was that the appellant fraudulently misrepresented the rent liability of Mrs Apanui in order to obtain from WINZ more money on her account than he was entitled to as sub-lessor.  Crucial to that issue is what the appellant knew about the residential intentions of Mrs Apanui’s son, Sione, at the time he wrote the letter and caused it to be forwarded to WINZ.

3. Mr Fowlds was the lessee of a residence at Fergusson Avenue, Lower Hutt.  He was accustomed to sub-letting rooms and there was evidence that in the first half of June 1999 he had three spare rooms for let.  One of these was taken by a Mr O C Wallace for $65 per week.  Towards the end of the week commencing 7 June, Mrs Apanui, who had read of rooms to let in the Trade & Exchange magazine, contacted the appellant and inspected the house.  She was accompanied by Mr Sione Apanui who was contemplating the possibility of sharing a room with his mother.  The room in question was the largest of those vacant and the appellant said that Mrs Apanui could have it for $85 per week.  For reasons which are not clear from the case on appeal, the appellant said that if Mr Apanui shared the room with his mother the total rent would be $120 or $125, inclusive of telephone use.  However Mr Apanui decided not to live at the house and on that basis the weekly liability of Mrs Apanui for rent should have been $85.  The terms of the tenancy arrangement required Mrs Apanui to pay the equivalent of three weeks rent in advance, one third of which was in the nature of a bond.  On that basis she should have paid the appellant a total of $255.  If, however, her son had agreed to share the premises, their joint liability would have been $375 in advance. 

4. Mrs Apanui was entitled to income support, as the appellant knew.  She did not have the money to make the advance payment but she and the appellant understood that assistance could be obtained by her from WINZ.  The appellant wrote the letter of 14 June for Mrs Apanui to take to WINZ in support of a request for assistance in relation to the advance rental.  He suggested in his submissions on the appeal that the information in the letter was also relevant to an accommodation supplement for Mrs Apanui. 

5. The letter was in these terms:-

   To whom it may concern,

   Dear person, this letter is to state that Muriel Apanui has moved into the above address as a flatmate.  Her rent will be $125-00c per week (½ of $250-00c).  This is a share-care flatting situation.  She is required to pay an advance of $375-00c, rent and bond. 

   Yours sincerely,

   John Fowlds. 

6. Mrs Apanui took the letter to WINZ who agreed to advance $375 on her behalf to the appellant on the basis that her benefit would be debited $5 per week in order to repay the capital.  Mrs Apanui was aware that the amount being considered by WINZ and intended to be advanced was $375, such being inconsistent with a rent of $85 per week.  Her explanation for this was to the effect that she was influenced by what the WINZ case manager said in apparent reliance on the appellant’s letter.  WINZ immediately advanced $375 to the appellant’s bank account.

7. Within a few days of moving into the room, the appellant and Mrs Apanui had a falling out over the discrepancy between the actual rent liability and the amount advanced to the appellant which Mrs Apanui was liable to repay to WINZ at the rate of $5 per week.  An altercation ensued and the police were called.  The appellant attempted to explain his position to the police by reference to an account produced at trial as Exhibit 4.  This purports to debit against the $375, rent at $12 per day for three days, two weeks rent in advance, leaving a balance of $169 followed by the words “which is 2 weeks advance as agreed”.  The proposition that Mrs Apanui would be liable, not for two weeks rent and the equivalent of a week’s rent by way of bond, but three days rent, two weeks rent in advance, and a further two weeks rent in advance “as agreed” is inconsistent with the letter sent to WINZ and the provision in the appellant’s standard flatting agreement (Exhibit 2) for the equivalent of three weeks in advance.

8. A consequence of the police intervention at the dispute between the appellant and Mrs Apanui was the arrest of the appellant for fraud.  On 19 June he wrote to Sergeant Hughes of Upper Hutt Police giving the explanation that there had been an agreement that Mrs Apanui and her son would be flatting with him at an agreed rate of $125 per week for both.  His letter suggests that he wrote to WINZ on that basis and that he did not know at the time he wrote the letter that Mrs Apanui’s son would not be living at the house.  The letter is dated 14 June 1999 but the appellant said in his letter to the police that he gave it to Mrs Apanui on Sunday 13 June.  He explained this to us on the basis that because the 13^th was a Sunday he thought it appropriate to post date to the first working day of the week.  However this explanation was not before the jury because the appellant did not give evidence at the trial.

9. The time when, relative to the handing of the letter dated 14 June to Mrs Apanui, the appellant became aware that Mr Sione Apanui would not be living in the property is obviously crucial.  The relevant use of the document is the creation of it and the handing of it to Mrs Apanui with the intent that she should take it to WINZ.  That is the time when the appellant’s intent must be examined.  The only evidence which might assist him on this issue is a statement in his letter of 19 June 1999 to Sergeant Hughes that:-

   I did not find out that her son was not going to come and flat here with us until after she had received my letter.

Evidence which if accepted would contradict that statement by the appellant appears in the testimony at trial of Mrs Apanui, Mr Apanui, and another sub-tenant, Mr O C Wallace. 

1. Mrs Apanui firmly denied in cross-examination that she and her son had told the appellant that Mr Apanui wanted to move in.  She denied that her son had ever told her he intended to move in.  Her evidence suggests that there may have been a discussion between her and the appellant on this issue but denies that she ever informed the appellant Mr Apanui was in fact going to move in.  She said that she told her son that the appellant wanted Mr Apanui to move in and that he could have another room for $60 but she denied there was any arrangement in fact for Mr Apanui to become a sub-tenant. 

2. Mr Apanui gave evidence.  It is inconsistent with his mother’s testimony in that he acknowledges that there was a discussion between him, his mother, and the appellant about his “bunking up” and that he and his mother could both have the bigger room for something about $120.  He says, however, that at the end of the day he told the appellant that he was not going to move in, that he had changed his mind.  He says this was on the same day that he inspected the house with his mother and he refers to this occurring on a day before the letter incident which he was aware of because he took his mother to Social Welfare.  He says that was on a Monday.  His evidence was that he told the appellant that he was not going to move in, that he then left the house and went to have a sleep in the car he had brought his mother in, leaving his mother to talk to the appellant. 

3. Mr O C Wallace, the occupier of the small bedroom, also gave evidence for the Crown.  He remembers Mrs Apanui coming for an interview with the appellant on a Thursday just after 4 o’clock which he recalled because he had picked his son up from school.  Mrs Apanui was talking with the appellant about renting a room.  Mr Wallace recalled seeing Mr Sione Apanui that day, first by the appellant’s desk and later on sitting in his car.  That was the only time he saw Mr Apanui.  He recalled Mrs Apanui moving into the premises on the Saturday with her belongings which were essentially a couple of suitcases.  He had been told on the Thursday by the appellant that Mrs Apanui and her son were both moving in, but on Saturday evening when he raised the matter the appellant told him that it was just Mrs Apanui moving in, that her son was going to go flatting with some of his mates.  Cross-examination did not shake him in this evidence.  He said that on the Saturday evening after he had earlier seen Mrs Apanui moving in her luggage he said to the appellant “where’s the boy, the guy”, and the appellant said “it’s just her moving in”. 

4. Counsel for the appellant extensively challenged the credit of those three Crown witnesses in cross-examination.  Our impression from the transcript is that he did so skilfully and as effectively as circumstances reasonably allowed.  Because the appellant did not give evidence, his case was dependent upon the jury being left with a reasonable doubt about his relevant intention, having regard to the letter he wrote to Sergeant Hughes, albeit after arrest, and the impression of reliability or otherwise of the Crown witnesses on the crucial issue.  The jury obviously had no such reasonable doubt because they convicted the appellant. 

5. The appellant raised several grounds of appeal, both in writing and in his oral submissions to this Court.  First, he argued that evidence had been withheld from the Court.  His concern was with a letter he sent to WINZ, apparently copied to the police at Upper Hutt, on 19 June 1999, after he had been arrested and charged for the present offence.  He provided us with a copy of the letter.  It states that Mrs Apanui would no longer be a flatmate from 22 June 1999 and that she had been dismissed because of her failure to inform WINZ of her change of circumstances and because of her abusive behaviour.  The appellant’s submission was that this letter, if produced, would have answered criticisms, made by the prosecution in closing, concerning his failure to approach WINZ about the changed circumstances.

6. It was not possible for us to ascertain the exact nature of the closing remarks of Crown counsel at trial.  What is plain, however, is that a copy of the letter said to have been withheld was in the appellant’s possession at trial, and also that its probative value was negligible, having been created at least five days after the original letter dated 14 June, and after the appellant had been arrested.  This ground has no substance.

7. Next, the appellant submits that the trial Judge was misled by the prosecutor’s closing, causing him to misdirect the jury in respect of the reference in the letter of 14 June to “½ of $250-00c”.  The Judge’s reference was a recital of a Crown argument that if Mr Apanui was thought to be moving in, Mrs Apanui’s share of the rent would be half of the sum quoted for a joint use.  The appellant says that the letter refers in fact to half of the head rent of $250 payable by him, and that its relevance is in connection with an accommodation allowance claimable by Mrs Apanui.  If that is the explanation it is certainly not plain from the letter which says that Mrs Apanui’s rent will be $125 per week.  Only the appellant could have given to the jury the explanation he now puts before this Court.  We cannot act on it.  When this was explained to the appellant he complained about the fact that he was not called to give evidence, but that complaint is groundless.  He knew from a previous mistrial on the same charge that he could give evidence because he did on that occasion.  The trial ended with a jury disagreement.  We do not doubt that on his later trial he made a deliberate decision not to give evidence.  He told us that he discussed the question with his counsel and gave written instructions confirming that he would not give evidence at the trial.  If, in consequence, explanations which he might have given were not aired, he cannot properly complain on appeal.

8. Another submission in support of the appeal was an alleged misdirection by the Judge in reciting a prosecution submission to the effect that the appellant, rather than Mrs Apanui, stood to gain from the letter because he would get the advance and Mrs Apanui would have to repay WINZ for it at a weekly rate.  The appellant says that Mrs Apanui would get an accommodation allowance.  Again we consider that the appellant is fixed with the consequences of his decision not to give evidence.  In addition, we remark that even if Mrs Apanui was going to get a benefit, that fact would not displace a fraudulent intent by the appellant to obtain a pecuniary advantage for himself or indeed for her.

9. In our view the jury was entitled on the evidence before it to come to the view that when the appellant used the letter of 14 June 1999, by writing it and giving it to Mrs Apanui for the purpose of presentation to WINZ, he knew that Mr Apanui would not be residing in the premises and that the appellant’s intent in so using the letter was fraudulent.  None of the grounds presented by the appellant to this Court justify setting aside the conviction.

10. For the above reasons the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington