W v Police HC Napier CRI 2005-441-37

[2005] NZHC 163

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2005-441-37

BETWEEN      W  

Appellant

ANDPOLICE Respondent

Hearing:         1 November 2005

Counsel:         Philip J Jensen for Appellant

Daniel M Kerr for Respondent

Judgment:      1 November 2005

ORAL JUDGMENT OF WILLIAMS J

Solicitors:

Elvidge & Co, Napier, for Respondent

Copy for:
P J Jensen, 10 Coronation Street, Napier, for Appellant

Judge Adeane, District Court Napier

W  V POLICE HC NAP CRI 2005-441-37  1 November 2005

[1]      The appellant, Ms W  , was charged that on 2 April 2005, with intent to obtaining property dishonestly and without claim of right, she attempted to use a document, namely a price tag, to obtain a pecuniary advantage.  She was convicted on that count on 12 August 2005 by Judge Adeane and now appeals against that conviction on the ground that it was erroneous in law.

[2]      The case was conducted in the District Court with commendable economy in the sense that no evidence was called orally and the matter was determined solely on the briefs of three witnesses.  The appellant did not call or give evidence.

[3]      A Mr McCormack, a bakery assistant at the Napier Pak ’n Save, said that he was filling shelves on 2 April when a little distance away he saw a woman, who turned out to be Ms W  , standing in front of the dessert cabinet.  He said he saw her take a price label of $1.49 off a mousse dessert and a label for a price of $3.99 off a cheesecake dessert and place the $1.49 label from the mousse as a substitute for the $3.99 label on the cheesecake.   That happened, he said, on two occasions.

[4]      Security staff were called.  They spoke to Ms W  , asked her why the prices on the cheesecakes in her trolley differed from those on the shelves and received the reply that she did not know, but later, upstairs, said she changed them. She was interviewed by the Police that evening and when asked what had occurred said “The cheesecakes never had a price on them so I took the price tag from another dessert close by and put this price tag on to the cheesecakes I wanted to buy”.  She said she didn’t think to ask the staff to place the price tag on the cheesecake which she said was without one and said she thought both the cheesecakes and the mousse had the same price.

[5]      Judge Adeane referred to the R v Wilcox [1982] 1 NZLR 191, to which Mr Jensen, counsel for the appellant, had referred him. The Judge took the view that it was not consistent with Ms W ’s case because there was evidence that the document had been put to use by moving it or interfering with it to obtain a

pecuniary advantage by underpaying for the cheesecakes.  He referred to Wilcox (at

195) where the Court of Appeal held that to amount to an attempt under the Crimes Act 1961 s 7 there must be an overt act immediately connected with the offence, or an  act  which  displays  not  just  preparation  or  intent  but  a  commencement  of execution.  Anything less was insufficient.

[6]      Mr Jensen reiterated those submissions today.

[7]      Mr Kerr naturally sought to uphold the decision, drawing attention to the Crimes Act 1961 s 72, which defines an attempt as the doing or omitting of acts for the purpose of accomplishing an intention to commit an offence, that question being a question of law.  He too referred to Wilcox and some other authorities.

[8]      The appellant was charged under s 228(b) which makes it an offence for any person with intent to obtain a pecuniary advantage who dishonestly and without claim of right “uses or attempts to use any document”.   It is clear that using a document to come within s 228(b) is sufficient where the use of the document is continuing and the singular also includes the plural.   The authority for that is R v Baxter [1998] 3 NZLR 144 at 153, where the Court of Appeal’s observations mirror those in Robertson et al, Adams on Criminal Law CA 228.04, p 1-1429.

[9]      Mr Jensen’s submissions, both in this Court and in the District Court, were that Ms W  ’s actions on 2 April did not amount to the use of the price tags for the purpose of obtaining a pecuniary advantage but were merely preparation for the possibility of that use.  The fallacy, however, in that argument is that s 228(b) makes it an offence both to use or to attempt to use a document to obtain a pecuniary advantage dishonestly and without claim of right.   The removal of the two lower value price tags from the mousses and their placement on the cheesecakes following removal of the price tags on the cheesecakes, if not a use of the price tags to obtain a pecuniary advantage was clearly an attempt to use the price tags for that purpose.  It would be fallacious to suggest that Ms W   was simply preparing to endeavour to use the price tags to obtain a pecuniary advantage.  What other purpose would there have been in the removal of the four tags and the substitution of the two

mousse tags for the cheesecake tags if it was not an attempt to use those tags to get the cheesecakes at a lower price?

[10]     It being a question of law, it was open to the District Court Judge to consider the  matter  and  determine  it  as  he  has.    For  very  much  the  same  reasons  as commended themselves to him, this Court takes the view that, as a matter of law, the offence was made out and the appeal is accordingly dismissed.

………………………………..

WILLIAMS J

1 November 2005