Wadman v Police

[2016] NZHC 1203

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-8 [2016] NZHC 1203

BETWEEN

OLIVIA GEORGETTE WADMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 June 2016
Counsel:	D J Watkins for Appellant M A Jarman-Taylor for Respondent
Judgment:	7 June 2016

JUDGMENT OF DUFFY J

Solicitors:

Crown Solicitor, Whangarei

WADMAN v NEW ZEALAND POLICE [2016] NZHC 1203 [7 June 2016]

[1]      In the District Court at Kaikohe Ms Wadman pleaded guilty to and was convicted of one charge of burglary and one charge of dishonestly using a document with intent to obtain a pecuniary advantage.   She sought a discharge without conviction, which was refused.   She now appeals against this refusal.

[2]      During the exchange with counsel at the appeal hearing it became clear that the outcome of this appeal could turn on two factors that are presently unclear.  They are: (a) whether the credit card that Ms Wadman unlawfully used clearly indicated the name of the card holder; and (b) whether Ms Wadman used this credit card knowing that it did not belong to the person who owed Ms Wadman money.  The balance of the relevant factors supported an outcome that resulted in Ms Wadman being discharged without conviction.

[3]      Ms  Wadman’s  explanation  for  unlawfully  entering  the  residence  of  the victims, removing items including the credit card from the address and then using the credit card was that she was owed $5000 by the intended victim, who is someone who used to live at the address but had left some time before the events that led to Ms Wadman being charged.   Such misguided self-help is rash and not to be encouraged.

[4]      On the other hand Ms Wadman was 19 years old at the time of the offending. She left her identity and contact details at the house, which is consistent with her claim that she removed the items and used the credit card to redress the unpaid debt that was owed to her.  When she learned she had taken the property of persons other than the intended victim she returned the property and repaid the credit card debts that she had incurred.  The use of the credit card occurred on the same day as the unlawful entering and removal of the credit card and other items.   In all but two respects her conduct is consistent with someone who has rashly decided to take the law into her own hands and recover money owed to her.

[5]      What would tell against Ms Wadman’s explanation is if it turned out that the credit card was clearly identified as not belonging to Ms Wadman’s debtor; and if she used it after she had contact with the victim.  In this regard there is evidence that

the victim used the contact details Ms Wadman left at the address to contact her by Facebook.  If Ms Wadman proceeded to use the credit card after having contact with the victim and so with full knowledge the credit card did not belong to her debtor that  would  reveal  dishonesty,  which  would  be  a  factor  against  granting  her  a discharge without conviction.

[6]      Counsel were agreed that there should have been a disputed facts hearing in the District Court before Ms Wadman was convicted and sentenced.  They were also agreed that the best course of action for the present appeal is for the appeal to be allowed by consent, the conviction set aside and for the matter to be remitted back to the District Court for a disputed facts hearing.

[7]      I agree with that approach.  Accordingly, I allow the appeal by consent and set aside the convictions entered in the District Court.  The matter is remitted back to the District Court for rehearing.  There will need to be a disputed facts hearing in relation to the two matters of contention: (a) whether or not there was a name on the credit card and, if so, whose name; (b) whether or not Ms Wadman accessed her Facebook account and communicated with the victim before she used the credit card.