E v Police HC Auckland CRI 2007-485-109 [2008] NZHC 1481 (22 September 2008)

Last Updated: 19 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2007-485-109}

BETWEEN E

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 22 September 2008

Appearances: Brian Henry for Appellant

Anna Longdill for Respondent

Judgment: 22 September 2008

_{JUDGMENT OF HARRISON J}

SOLICITORS

DJ Gates (Whangaparaoa) for Appellant

Meredith Connell (Auckland) for Respondent

COUNSEL Brian Henry

E V POLICE HC AK CRI 2007-485-109 22 September 2008

Introduction

[1] This appeal arises in unusual circumstances. Mr Mark E was convicted following a summary trial in the District Court at Wellington on 1 September 1992 on two charges of obtaining credit by means of false pretences: s 247 Crimes Act

1961 (now repealed). He was fined $400 on each charge and ordered to pay witnesses expenses. The District Court also ordered him to pay reparation of $2,223.

[2] Mr E ’s appeal against conviction was dismissed in the High Court at Wellington on 9 June 1993. However, on 26 September 2007 Simon France J granted by consent Mr E ’s application to reinstate his appeal. The Court was satisfied that he did not receive notice of the fixture in 1993. Since then the hearing of the appeal has been delayed because of Mr E ’s difficulties in obtaining counsel and for other related reasons.

[3] The appeal raises one important but discrete point. Having had the benefit of written synopses from Mr Brian Henry for Mr E and Ms Anna Longdill for the Crown, and having heard oral argument this morning, I am now in a position to deliver judgment orally.

District Court

[4] The relevant facts were not in dispute. Mr E incurred debts of $1,340 and $882 respectively with Telecom (Wellington). He obtained the necessary credit on both occasions by falsely representing that he was respectively Martin Ronald Everson and Mark Everson. The credit was in the nature of line charges, maintenance and toll calls. At a pre-trial conference counsel agreed that the time, date, telephone numbers and names were not in issue.

[5] Mr E opened two accounts in the name of Everson on or about

6 November 1990, the day after he was adjudged bankrupt. Mr E or more particularly companies associated with him were then indebted to Telecom for a total of $19,000. The accounts were for phone and fax connections. Telecom gave unchallenged evidence at trial that the company would have declined applications

made by Mr E in his own name for telephone and fax connections. That was because of his companies’ previous adverse credit history with Telecom. Both accounts were later closed. Only one payment of about $200 was made to meet outstanding balances totalling over $2,100.

[6] Mr E gave evidence in his defence at trial. He admitted that he opened the accounts by using false names. He gave two reasons for doing so. One, which is not easy to follow, was to avoid being pursued by his creditors. The other, which appeared to assume more prominence at trial, was that he wanted confidentiality without incurring Telecom’s fee usually charged for a confidential line. Mr E said that at the time of opening the accounts he had been in employment and was about to start work with another company. He said he expected to receive a considerable sum from another party together with future payments of commission sufficient to enable payment of the accounts in due course.

[7] A great deal of evidence was given in the District Court. The transcript runs to 67 pages. With respect, it reflects a misunderstanding by both the prosecution and defence of what was truly in issue. Almost all the evidence given was irrelevant.

[8] Judge John Gatley delivered an oral judgment. The ratio of his decision to convict was as follows:

I have no doubt that he [Mr E ] did want to escape the attentions of his creditors, but even so, on the evidence adduced by the prosecution, I am satisfied beyond reasonable doubt that the defendant obtained credit from Telecom by dishonest conduct in using someone else’s name to open the accounts when he knew his own would not be acceptable to Telecom co- existent with an intention or awareness that he would not be in a position to pay Telecom bills as they fell due, let alone previous debts to Telecom.

[Emphasis added]

I shall return to the highlighted portion of this passage, or more particularly the legal principle which underscores it, at a later point.

Appeal

[9] Mr Brian Henry, who appears for Mr E on appeal in this Court but did not represent him in the District Court, advances one succinctly expressed ground of appeal. He submits that the Crown failed to prove that Mr E had an intention to defraud Telecom when the credit was obtained on 5 or 6 November 1990. He says the opening of phone accounts in a false name is insufficient to support a conviction.

[10] Mr Henry refers to Mr E ’s consistent denial, both in answer to Telecom investigators and at trial, that he intended to defraud Telecom. He also relies on Mr E ’s explanation at the hearing that he was unable to pay the accounts due to a severe and unanticipated shortfall in income after the phone connections were arranged. Mr Henry submits that Judge Gatley’s conclusion that Mr E knew when opening the accounts he would not be in a position to pay was unsupported by the evidence.

Decision

[11] I do not accept that Mr Henry’s argument is legally tenable. It relies upon the authority of Police v Griffiths [1976] 1 NZLR 498 where Mahon J identified these four elements of liability under s 247: (1) the incurring of a debt or liability; (2) the obtaining of credit for that debt or liability; (3) by a false pretence or other fraud; and (4) co-extensively with (3), an intention not to pay or otherwise defraud the creditor.

[12] In Griffiths the appellant was convicted on a charge of obtaining credit by fraud. He had engaged a taxi one evening. His condition led the driver to inquire whether he had money to pay the fare. The answer was in the affirmative. On arrival at the nominated address the driver asked for payment of the $8 fare. He refused Mr Griffiths’ offer of a cheque in payment and instead drove him to a police station. Mr Griffiths’ bank account was then in credit for $64.

[13] In allowing the appeal in Griffiths Mahon J identified the fourth element as an essential ingredient of liability. However, his statement was not meant to absolute but, as he emphasised, to apply in the context of the type of charge with which the appeal was concerned. He found support in the decision in R v McKay [1960] NZPoliceLawRp 16; [1961] NZLR 256 where the Court of Appeal allowed an appeal by a man who had obtained credit for a night’s lodging in a hotel. He offered to pay but was directed to settle the account the next morning. However, he told a lie when checking out and departed without paying. Nevertheless, the Court of Appeal held no inference was available from his conduct that the credit was obtained by means of a fraud given his offer of payment at the relevant time.

[14] In both McKay and Griffiths the means by which credit was obtained was a representation as to ability to pay when the debt fell due. To succeed the Crown had to prove the critical element of falsity; namely, that the debtor did not have the ability or intention to pay when obtaining the credit. English authority is to the same effect: see R v Waterfall [1970] 1 QB 148; cited with approval in Hayes v R [2008] NZSC 3 at [44].

[15] However, Mr E ’s representation was of a very different nature. The means by which he obtained credit was a pretence as to identity. He pretended to be another person for that purpose. Thus, unlike McKay or Griffiths, the Crown proved falsity by Mr E ’s own admission that he knew the representation was false when made.

[16] Moreover, Mr E intended to and did in fact induce Telecom to act upon it. He obtained an immediate benefit. The crime was then committed. Whether or not Mr E then believed he had the ability or intended to pay on due date was irrelevant. His deliberate misrepresentation was a false pretence which was the specific type of fraud nominated by s 247.

[17] In this respect a brief comparison with ss 246 and 247 is apposite. On the former, also since repealed, a person was liable to a term of imprisonment not exceeding seven years for the offence of obtaining certain benefits by a false pretence. The section specifically required proof of either intent to defraud or cause

loss by any false pretence. By comparison, s 247 required proof of much less; namely, incurring a debt or liability by obtaining credit by means of a false pretence or any other fraud. Proof of intent to defraud or loss was unnecessary. The maximum term of imprisonment was only one year.

[18] Mr E admitted that he knew Telecom would not grant him credit if he gave his real name. The offence was complete once Telecom did give credit in reliance on what was a false or deliberate misrepresentation. Whether Telecom did or did not suffer loss was irrelevant. Furthermore, by giving somebody else’s name, the only inference available is that Mr E knew Telecom would be unable to recover from that person when the debt fell due for payment. Either the person did not exist or, if he did, he would be able to disclaim liability.

[19] This analysis is supported by authority. In Attorney-General’s Reference (No 1 of 2001) [2002] EWCA Crim 1768; [2003] 1 WLR 395 (Kennedy LJ, Curtis and Pitchford JJ) (cited with approval in Hayes at [19]-[21]) the Court of Appeal held that, even where an accused person was entitled to payment, he committed the offence of dishonestly furnishing false information with a view to gain for himself because of the dishonesty with which he sought to procure it. Kennedy LJ for the Court said this:

In our judgment, R v Parkes [1973] Crim LR 358 was rightly decided, and it follows that on the facts of the present case, contrary to what was decided by the trial judge, there was clear evidence that [the defendants] were acting with a view to gain for themselves. Even if they had a valid claim to some of the money in the trust fund on the basis that the money should never have gone into the fund, and even recognising that they were beneficiaries under the trust, makes no difference, because none of that relates to what they were doing at the material time: they were dishonestly making use of a false invoice to substantiate a claim for expenses, and thus to extract from the trustees a cheque for £9,113.50.

[Emphasis added]

See also Welham v Director of Public Prosecutions [1961] AC 103.

[20] In conclusion, I repeat that it is the means by which the credit is obtained and Mr E ’s dishonesty when applying for it that was decisive. On his own admission, Mr E deliberately provided a false name. That was the dishonesty

or mens rea of the crime specifically provided by the section. A conviction had to follow from Mr E ’s concession.

[21] I should note that even if Mr Henry was right on the law, and the prosecution was obliged to prove the extra element of knowledge of an inability to pay when obtaining the credit, as Judge Gatley found, the appeal would have failed in any event. The Crown had a compelling prima facie case of fraud by virtue of the false pretence even if it was bound to prove the element of belief of ability to pay at the time the debt fell due: see Griffiths at 500. As Ms Longdill emphasises, and the Judge accepted, Mr E opened the account within a day of being adjudged bankrupt; he knew that companies with which he was associated owed creditors around $200,000 including a corporate debt to Telecom of $19,000; and he paid only a small portion of his liability.

[22] In the absence of a plausible explanation sufficient to raise a reasonable doubt, a conviction was inevitable. Mr E gave evidence. As noted, he said that he expected some money to come from other parties. Judge Gatley, who had the benefit of seeing and hearing Mr E under extensive cross-examination, rejected the explanation as implausible. I am not in a position on appeal to review or second-guess a credibility finding made by a Judge in those circumstances.

_{[23] Accordingly, for these reasons, the appeal must be dismissed.}

Rhys Harrison J