Cooper v R [2018] NZCA 159 (18 May 2018)

Last Updated: 24 May 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA5/2018 [2018] NZCA 159

	BETWEEN	ROBERT BRITT COOPER Appellant
	AND	THE QUEEN Respondent

Hearing:	2 May 2018
Court:	Kós P, Brewer and Gendall JJ
Counsel:	J W Watson for Appellant E J Hoskin for Respondent
Judgment:	18 May 2018 at 3 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

[1] On 20 December 2016, Judge R McIlraith convicted Mr Cooper of three charges following his judge alone trial:^[1]

• (a) by deception and without claim of right, Mr Cooper induced Marion Brock to deliver over a document, namely a bank document capable of being used to derive a pecuniary advantage, valued at $70,000;^[2]
• (b) with intent to obtain pecuniary advantage, dishonestly and without claim of right took a document, namely a bank document;^[3] and
• (c) while a protection order was in force against him, engaged in behaviour which amounted to psychological abuse of the protected person, namely without authority withdrew $70,000 from a family-trust
  term-deposit account.^[4]

[2] On 30 June 2017, the Judge sentenced Mr Cooper to nine months’ home detention and made a reparation order for $70,000.^[5]
[3] Mr Cooper now appeals his convictions and, if unsuccessful, the making of the reparation order.

Approach on appeal

[4] Mr Cooper’s appeal lies with this Court because he originally elected trial by jury before applying for a judge alone trial.^[6] The appeal is by way of rehearing. To succeed in his conviction appeal, Mr Cooper must show that a miscarriage of justice has occurred.^[7] This means Mr Cooper must first establish an error. Second, he must establish there is a real risk the error may have affected the outcome of the trial or rendered it unfair or a nullity.^[8]
[5] To succeed in his appeal against the making of the reparation order, Mr Cooper must establish there is an error in the sentence, and that a different sentence should be imposed.^[9]

Background

[6] Mr Cooper and his wife were estranged. They attended mediation to try to resolve their relationship property matters. An agreement in principle was reached on various matters but there was no binding settlement. However, in expectation of a final settlement being agreed in a timely way, both Mr and Mrs Cooper signed a single bank form authorising the withdrawal of $70,000 from their family-trust term-deposit account. It was agreed that this signed form would be held by Mr Cooper’s solicitor, Mr Dodds, pending final agreement.
[7] Final agreement was not reached. On 3 October 2014, Mr Cooper went to his solicitor’s office knowing that his solicitor was overseas. He spoke with Ms Brock, a legal executive. He told her he wanted to look at his file and get copies of some of the documents on it. Ms Brock gave Mr Cooper his file and copied some documents from it at his request.
[8] Mr Cooper, without Ms Brock knowing about it, removed the signed withdrawal form from his file. He did not ask Ms Brock whether he could do that and he did not tell her he had taken the document. Instead, he told her he had what he needed, returned the file to her, and left the office.
[9] Mr Cooper then drove directly to the bank, presented the withdrawal form and withdrew $70,000 from the family-trust account (thereby breaking the term deposit). He deposited the money into his own account.
[10] Mrs Cooper found out about this when she checked their bank accounts online. She notified her solicitor, who contacted Mr Cooper’s solicitor. It seems that Mr Cooper’s solicitor then contacted Mr Cooper, who made an unsuccessful effort to return the money to the bank holding the family-trust account. The money has not been repaid.

Judge McIlraith’s decision

[11] On the first charge, obtaining by deception, the Judge found that by saying nothing to Ms Brock, Mr Cooper deceived her. Mr Cooper gave evidence at his trial and the Judge found:^[10]

[26] In relation to the withdrawal form, [Mr Cooper] was expressly asked by Mr Wall if he had asked Ms Brock to copy that document. His answer was that he had not done so. He spoke of his usual approach of referring to an “exchange” where he had removed anything from Mr Dodds’ file on previous occasions. He did not say that this occurred on this occasion. Most importantly, he recalled Ms Brock asking if he had finished and, when questioned by Mr Wall as to whether he had told Ms Brock that he was taking the withdrawal form, he answered that he did not think it was any of her business whether he had the document.

[27] Based on this evidence, I have no doubt that Ms Brock was deceived by Mr Cooper. Mr Cooper omitted to disclose a material matter to Ms Brock when there was clearly an obligation to disclose it. He did not tell her that he had removed the withdrawal form. He said that this was because it was none of her business. I consider after hearing Mr Cooper’s evidence, that he knew that if had he asked to remove the withdrawal form, his request would likely have been declined. Further, I consider that he realised that he needed to ask to take it. This document was not in the same category as the other documents that he took (copies of documents or paper on the file) and he did not refer to there having been an ‘exchange’ of documents to Ms Brock as he had done previously. I infer that he realised this ought to be done when he was taking anything from the file.

[28] I am also satisfied that Mr Cooper intended to deceive Ms Brock when he took the withdrawal form. My reason for this is already covered. I am satisfied that he knew that he ought to tell Ms Brock he was removing an item from the file, particularly a matter of such importance.

[12] We pause to note that “deception” is defined in s 240(2) of the Crimes Act 1961. It includes:

(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; ...

[13] In addition to deception, the charge requires proof that Mr Cooper obtained the document without claim of right:^[11]

claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed

[14] Judge McIlraith rejected Mr Cooper’s evidence that he genuinely believed the money in the family-trust term-deposit account was his own and therefore he was entitled to withdraw it using the form. The Judge found:

[33] On my understanding of Mr Cooper’s evidence, his claim of right was based on two particular beliefs, which he claimed he had at the time concerned. They were:

(a) First, a belief that the issues between himself and Mrs Cooper had been settled and that he was entitled to take the withdrawal form from the file and action it to place the $70,000 into his own account. This was a comment made by Mr Cooper at various points in his evidence. I do not consider that this was a genuinely held belief on Mr Cooper’s part. That is because it simply is not supported by the weight of the evidence. I refer in particular to the evidence of Mr Cooper recorded in the notes of evidence at pages 76, 79 and 80. Mr Cooper confirmed that he was aware that there would be no final agreement reached until there had been an executed agreement. This was of course the document that he had gone into the office, of Mr Dodds, to copy a draft of on 3 October 2014. He referred to that draft document containing gaps and clearly appreciated that it was not finally agreed. In terms of his initial optimism at the conclusion of the mediation on 19 September that an agreement would be reached in the next few days, he conceded in cross examination that after several weeks his optimism had begun to wane. He observed that he had learned that Mrs Cooper was very unpredictable and would often change her mind several times on matters. He clearly understood on 3 October 2014 that she may well have changed her mind about whatever agreement in principle had been reached at mediation several weeks earlier.

(b) Second, a belief that the money in the family trust term deposit account was in fact his. Mr Cooper said that he felt he was entitled to that money. Once again, I do not accept that this was a genuinely held belief on 3 October 2014. As noted by Mr Cooper in his evidence ... he had began to have concerns regarding the management of the bank accounts in April 2014. He referred in his evidence to having undertaken an exhaustive task of trying to reconcile the movement of money around bank accounts after that time. He was, accordingly, aware that there were issues as to what money was in what accounts and clearly these had been matters discussed in mediation and which had formed part of the agreement in principle. It was of course in reliance upon that agreement in principle that Mr Cooper along with Mrs Cooper had signed the withdrawal form for the family trust term deposit account and agreed that this would be held by Mr Dodds, pending any settlement being concluded. It simply does not sit with that fact that Mr Cooper would have had a genuine belief on 3 October 2014 when he went to [Mr Dodds’] office that the money in the family trust term deposit account was his at the time that he took the withdrawal slip from the file.

[15] The charge of dishonestly taking a document related to Mr Cooper taking away from the solicitor’s office the withdrawal form. The findings by the Judge in relation to the first charge meant he found this charge proved also.
[16] As to the charge of breaching the protection order, there was no contest that such an order was in place. As a standard condition, it required that Mr Cooper must not:^[12]

Engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of any protected person; ...

[17] The Judge held:^[13]

Given the view I have reached as to Mr Cooper’s belief in relation to charges 1 and 2, I conclude that Mr Cooper did not have a reasonable excuse for his actions on 3 October 2014. He has not satisfied me on the balance of probabilities that his actions were reasonable. To the contrary, I am satisfied that Mr Cooper knew that he ought to have told Ms Brock and chose not to do so, and then [actioned] the withdrawal form without authority. That action had the obviously predictable outcome of causing distress to Mrs Cooper.

Appeal against conviction

[18] First, it is submitted that the evidence of what took place in the solicitor’s office between Mr Cooper and Ms Brock is privileged. This issue was raised at the commencement of the trial and rejected by the Judge.^[14] The Judge concluded that Mr Cooper was not at the solicitor’s office to obtain professional legal services as contemplated by s 54(1) of the Evidence Act 2006. Ms Brock was simply assisting Mr Cooper to obtain copies of documents on his file.
[19] Mr Watson submits that Mr Cooper’s communications with Ms Brock were intended to be passed on to his solicitor, for whom Ms Brock was acting as an authorised representative. These communications were therefore made in the course of obtaining legal services from a legal adviser for the purposes of s 54(1).
[20] Mr Watson further submits that despite not going to his solicitor’s office to obtain legal advice per se, Mr Cooper would nevertheless have had a reasonable expectation of confidentiality concerning what was said and done there.
[21] As to the attachment of privilege to conduct that constitutes a criminal offence, Mr Watson argues that no offence was committed until the moment Mr Cooper took the document without telling Ms Brock that he was doing so. Everything that occurred up to that point is accordingly covered by privilege.
[22] Ms Hoskin, for, the Crown, submits that Mr Cooper attending his solicitor’s offices and asking Ms Brock to copy documents for him cannot amount to the provision of legal services. Following the same reasoning she argues there can have been no expectation of confidentiality arising between Mr Cooper and Ms Brock.
[23] In any event, Ms Hoskin submits, the admission of Ms Brock’s evidence could not have caused any prejudice to Mr Cooper as it aligned with the evidence given by Mr Cooper on all material points.
[24] Mr Watson relies on s 51(4) of the Evidence Act. It states that for the purposes of s 54(1), privileged communications or conduct includes:

... a communication made or received or an act carried out by an authorised representative of that person on that person’s behalf.

[25] We accept Ms Brock may have been the solicitor’s authorised representative. However, where Mr Watson’s argument falls is at the obtaining professional legal services hurdle.
[26] We do not consider Mr Cooper’s intention was to obtain professional legal services from his solicitor by means of Ms Brock as an intermediary. Mr Cooper went to his solicitor’s office with the stated purpose of collecting copies of documents from the file. We do not consider this in itself amounts to the obtaining of professional legal services.
[27] For the same reason, we do not consider there could be a reasonable expectation of confidentiality in regard to Mr Cooper’s conduct in the solicitor’s office.
[28] Further, it is entirely unclear what the protected communications could be. The deception occurred by omission. It is not that Mr Cooper said something on a privileged occasion that should be protected. The nub of the first charge is that he failed to say he was taking the form.
[29] In any event, the Court may disallow a claim of privilege if there is a prima facie case that the communication in question was prepared for a dishonest purpose or in furtherance of an offence.^[15] We consider that, even if Mr Cooper did have a proper claim of privilege, it would be disallowed for this reason. Mr Cooper’s actions and communications in the solicitor’s office were prima facie to further the dishonest obtaining of the form.
[30] We conclude that privilege does not attach to the evidence of what took place in the solicitor’s office.
[31] Second, Mr Watson submits Judge McIlraith did not find that Mr Cooper lacked an honest belief in his right to take the form. Mr Cooper’s evidence was that Mrs Cooper had, without his permission, taken funds from Mr Cooper’s bank accounts and deposited $100,000 in a term deposit account in the name of the family trust. Therefore, he believed he was entitled to those funds because they were his. Further, Mrs Cooper, as one of three trustees, had no authority either to open the term deposit account or to deposit the $100,000.
[32] We do not accept this submission. The Judge’s findings on honest belief are contained in his discussion of ‘claim of right’ which we quote above at [14] of this judgment. On the evidence, the Judge was entitled to make those findings.
[33] Mr Watson makes the same submission in criticising the Judge’s finding that there was no claim of right. It applies equally to the second of the charges, dishonestly taking a document.
[34] We do not accept this submission. For the reasons we have given, the Judge was entitled to make his finding on the claim of right element and they include a finding of a lack of honest belief.^[16]
[35] As to the charge of breach of a protection order, Mr Watson’s submits there is no evidence that withdrawing the $70,000 caused Mrs Cooper a psychological impact in breach of the protection order. In his oral submissions, Mr Watson said:

She may well have had an expectation that the $70,000 would remain in the bank account because she had signed the withdrawal form under circumstances where it was part of a settlement, but the fact remained it’s difficult to understand how her going independently online and finding that $70,000 had been withdrawn from the account can have been a psychological breach of the protection order.

[36] It is correct that Mrs Cooper gave no evidence as to the effect on her when she discovered that the $70,000 had been withdrawn.
[37] However, Ms Hoskin points to the definition of psychological abuse in the Domestic Violence Act 1995 as including “financial or economic abuse (for example, denying or limiting access to financial resources ...)”.^[17] It is submitted the financial variant of psychological abuse is concerned with the exertion of control by the perpetrator rather than the psychological impact upon the protected person.
[38] Ms Hoskin further submits that Mr Cooper’s actions had the effect of limiting Mrs Cooper’s access to the relevant funds, which in itself is enough to constitute psychological abuse for the purposes of the Act.
[39] We agree. The statutory language in the Act is quite clear. It simply states that denying or limiting access to financial resources is an example of psychological abuse. There is nothing that says that actual psychological distress needs to result from this. The abusive aspect of such conduct can be seen to arise from the exertion of control over a protected person’s financial means.^[18]
[40] We take a plain reading of the relevant sections of the Act. In doing so, we note the approached endorsed by this Court in SN v MN:^[19]

[18] The Act is ... of a remedial nature: it is to be given a wide and liberal construction in achieving its purpose of eliminating abusive power and control in domestic relations through the mechanism of protection orders ...

[19] Section 5(2)(b) requires access to the Court to be “as speedy, inexpensive and simple as is consistent with justice”. In keeping with this requirement of simplicity, the statutory text is clear and unambiguous. Its controlling words and phrases mean what they say ... Judicial overlays or refinements on a self-contained, plainly written statutory code do not assist.

[41] We are satisfied that Mr Cooper, by withdrawing the $70,000, denied Mrs Cooper access to financial resources. That is as far as the enquiry needs to go in order to establish psychological abuse.
[42] Mr Cooper’s appeal against his convictions does not succeed. It was clearly open to Judge McIlraith on the evidence to find Mr Cooper deliberately deceived Ms Brock and made off with the withdrawal form, doing so without a claim of right which could establish an honest belief. In the context of the discord between Mr and Mrs Cooper which resulted in Mrs Cooper obtaining the protection order, his action in withdrawing the $70,000 constituted psychological abuse.

Appeal against sentence

[43] Mr Watson’s submission is that Judge McIlraith should not have made the reparation order because ownership of the money was in dispute and, indeed, is currently part of the subject of a civil action in the High Court. We disagree. At sentencing, Judge McIlraith said:

[13] I have thought very carefully about that matter. One can read the proceedings as I have done briefly previously and again this morning and think carefully about the case law and what the Sentencing Act 2002 says about reparation. The key point that I keep coming back to is that my task here is to hold you accountable for what occurred and to denounce what occurred. In that context, it seems to me that the best way to look at the situation is that an order of reparation in favour of the Family Trust simply restores the status quo. In other words, it puts the parties back into the position they were prior to you committing the offences that I have found you committed.

[44] Nothing the Judge did pre-empted the dispute over the ownership of the funds in the family trust account. Mr Cooper, through criminal action, took $70,000 from the family-trust. All the Judge did is order that it be returned. We note that the reparation order has not, in any event, been complied with.

Result

[45] The appeals against conviction and sentence are dismissed.

Solicitors:
Robin Fountain Solicitor, Mangonui for Appellant
Crown Law, Wellington for Respondent

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^[1] R v Cooper [2016] NZDC 25508.

^[2] Crimes Act 1961, ss 240(1)(c) and 241(a).

^[3] Section 228(1)(a).

^[4] Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).

^[5] R v Cooper [2017] NZDC 14241.

^[6] Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [19].

^[7] Criminal Procedure Act 2011, s 232(2)(b).

^[8] Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].

^[9] Criminal Procedure Act, s 250.

^[10] R v Cooper, above n 1.

^[11] Crimes Act, s 2.

^[12] Domestic Violence Act, s 19(1)(d).

^[13] R v Cooper, above n 1, at [44].

^[14] R v Cooper [2016] NZDC 24046.

^[15] Evidence Act 2006, s 67(1). This is a codification of the former common law crime or fraud exception to privilege: R v Cox and Railton (1884) 14 QBD 153 (QB).

^[16] Ms Hoskin, in her submissions, wondered whether the first two charges might be duplicitous. We are satisfied they are not. The first related to the deception of Ms Brock and the second to the taking away of the withdrawal form.

^[17] Domestic Violence Act, s 3(2)(c)(iva).

^[18] We note the comments of Miller J in M v M (2005) 7 HRNZ 971 (HC) at [21] to the effect that many cases of psychological abuse will involve the establishment of a relationship of control over the protected person.

^[19] SN v MN [2017] NZCA 289, [2017] 3 NZLR 448.