Lang v Police [2011] NZCA 484 (23 September 2011)

Court of Appeal of New Zealand

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Lang v Police [2011] NZCA 484 (23 September 2011)

Last Updated: 29 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA179/2011 [2011] NZCA 484

BETWEEN SONNS CRUSMON LANG Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 12 September 2011

Court: Randerson, MacKenzie and Asher JJ

Counsel: R M Adams and H J Douglas for Appellant J M Jelas for Respondent

Judgment: 23 September 2011 at 3 p.m.

JUDGMENT OF THE COURT

[1] The application for special leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by MacKenzie J)

[2] Mr Lang pleaded not guilty to a charge brought under s 15 of the Summary Offences Act 1981. He was convicted following a defended hearing in the District Court at Rotorua before Judge McGuire on 6 May 2010.[1] His appeal to the High Court against that conviction was dismissed by Lang J on 13 December 2010.[2] An application to the High Court for leave to appeal to this Court under s 144 of the Summary Proceedings Act 1957 was dismissed by Brewer J on 7 March 2011.[3] He now applies to this Court for leave.
[3] The charge against Mr Lang was:

That on the 13th of September 2009 at Rotorua, he collected by means of a false pretence, namely portraying himself as a collector for Victim Relief, the sum of $18.95.

[4] It was brought under s 15 of the Summary Offences Act, which provides:

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $1,000 who solicits, gathers, or collects alms, subscriptions, or contributions by means of any false pretence.

[5] Mr Lang defended himself in the District Court. The essence of the prosecution case was that Mr Lang was purporting to seek donations for charity when in reality any funds donated were for his personal use. The Judge found as a fact that the clear and necessary implication of Mr Lang’s approaches to householders was that he was collecting money not for himself but for a third party.
[6] On appeal, Lang J upheld that finding, concluding that Mr Lang deliberately pretended to be collecting donations for parties other than himself, and that pretence was demonstrably false. Mr Lang must have known that he was misleading the person with whom he was dealing and therefore acted dishonestly in obtaining donations from them.
[7] Under s 144 of the Summary Proceedings Act 1957, this Court may grant leave to appeal if in its opinion the question of law involved in the appeal is one which by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[8] Ms Adams, in her very comprehensive and careful submissions in support of the application, submits that there are three matters which give rise to questions of law meeting that test. She submits that the District Court Judge erred in that:

• (a) The Judge failed to consider properly and fully whether the applicant had the necessary dishonest intent to establish the mens rea element of the offence;
• (b) The evidence raised doubt about the applicant’s belief or awareness of dishonesty; and
• (c) The Judge failed to give the applicant, a self-represented and vulnerable litigant, a fair opportunity to be heard and to present his case: in particular, he failed to give the applicant an opportunity to address and respond to adverse findings which he proposed to make and which had not been expressly addressed in the course of the hearing.

[9] We can address together the first two points, which are related. Ms Adams submits, correctly, that an honest, even though unreasonable, belief that the representation is true will negate the element of deception. She notes that the Judge identified the essence of the s 15 charge as requiring knowledge that the representation was false and dishonest, but submits that he failed to base his finding on that issue on the evidence.
[10] This submission does not provide a basis for the grant of leave to appeal. It has been established in the lower courts as a matter of fact that Mr Lang had the necessary dishonest intent. No question of law arises, let alone one of general or public importance.
[11] The third point raised on Mr Lang’s behalf asserts that the Judge failed to give him an opportunity to address and respond to adverse findings the Judge proposed to make and which had not been expressly addressed during the hearing. Counsel submitted that, when inviting Mr Lang to cross-examine the sole witness called for the prosecution, it was not clear whether it was explained to Mr Lang that failure to do so would leave the Court with no alternative other than to accept the police evidence. In other respects, the Judge had failed to invite the applicant to comment or explain other matters such as the implications of changes Mr Lang had made to his method of approach to householders after an earlier conviction for similar offending.
[12] In this respect, we accept the Crown’s submission that no issue of procedural unfairness arises. Mr Lang was advised of his right to silence and the Judge accepted comments or submissions from Mr Lang without requiring him to submit himself for cross-examination. We are unable to discern anything in the way in which the hearing was conducted which gives any basis for concern that his right to a fair trial was breached.
[13] We comment that Mr Lang was entitled to represent himself.[4] The fact that he elected not to give evidence imposed a constraint on the extent to which the Judge could ask Mr Lang about evidential issues since that might have risked breaching Mr Lang’s right to silence.
[14] We conclude that there is no question of law of general or public importance or which for any other reason justifies the involvement of this Court in a further appeal.
[15] The application for special leave to appeal is accordingly dismissed.

Solicitors:
Adams & Horsley, Tauranga for Applicant
Crown Law Office, Wellington for Respondent

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[1] Police v Lang DC Rotorua CRI-2009-063-5144, 6 May 2010.
[2] Lang v Police HC Rotorua CRI-2010-463-46, 16 December 2010.
[3] Lang v Police HC Rotorua CRI-2010-463-46, 7 March 2011.

[4] Section 37(1) of the Summary Proceedings Act 1957, referred to by this Court in R v Cumming [2006] 2 NZLR 597.