V v Police HC Wellington CRI 2008-485-102 [2008] NZHC 1619 (15 October 2008)

Last Updated: 20 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2008-485-102}

V

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 October 2008

Counsel: N Levy for the Appellant

M Snape for the Respondent

Judgment: 15 October 2008

_{JUDGMENT OF RONALD YOUNG J}

[1] The appellant, Mr V , owed money for unpaid fines. His car had been seized by the Ministry of Justice. He advertised the car for sale on TradeMe. He told the bidders he needed the money to pay the fines to have the car released to the new owner.

[2] The complainant bought the car, paid the money to the appellant but did not receive the car. The appellant was charged under section 240(1) of the Crimes Act

_{that by deception and without claim of right he obtained the money.}

V V NEW ZEALAND POLICE HC WN CRI 2008-485-102 15 October 2008

[3] The Judge in the District Court amended the charge to one of theft pursuant to section 219 of the Crimes Act that he dishonestly and without claim of right used the money of the complainant to deprive him permanently of the money. He convicted the appellant.

[4] The appellant’s case is that he did not commit the crime of theft and the Judge, by amending the charge, accepted he had not committed the crime under section 240 of the Crimes Act of deception.

[5] The appellant’s case is that the contract between the parties allowed the appellant to use the complainant’s money to pay off his fines before the complainant was to get the car. Thus the appellant says he was entitled to use the $1,740, paid by the complainant for the purchase of the car, and the Judge was wrong to conclude his use of this money was dishonest.

Background facts

[6] The facts in this case were essentially agreed at the hearing.

[7] The appellant advertised a Subaru Station Wagon for sale on TradeMe. As part of the advertisement he said:

Car was impounded yesterday from ministry for fines so selling to get out of impound and straight to the new owner! Will give full details to the winner of this auction!

[8] The car was described as a 1993 Subaru Legacy Station Wagon. Mr Evans bid on and won the auction for $1,740. He was advised to deposit the money into Mr V ’s account. The $1,740 included the cost of the appellant delivering the vehicle to Mr Evans in Auckland.

[9] When the car did not arrive Mr Evans tried to contact the complainant without success. Eventually he received an email from a person claiming to be the appellant’s girlfriend. She claimed the appellant had been on the way to deliver the vehicle when he had suffered an accident and the vehicle had been “wasted” and the appellant had been “locked up”.

[10] She offered a refund of the money. The complainant sent his bank details but no refund was received. The appellant was then interviewed by the Police. He said in his interview that he owned a Subaru motor vehicle which the complainant had purchased and he was on his way to deliver the vehicle to the complainant when it broke down. He said he had left the vehicle at a garage and had later recovered it.

[11] Having considered this evidence, the Judge said:

[10] Because it was apparent from the matters raised in the video interview that there might well be an arguable defence that at the time of receiving the money, Mr Vaalepu may in fact have been in possession of such a vehicle and may have intended to deliver it, there might thus be a flaw in the prosecution case having regard to the charge as presented.

[11] I address concerns to both counsel on that score and invited openly from the bench an amendment of the charge indicating that I was satisfied on the evidence that I had heard that an offence had occurred if not necessarily the offence as charged.

....

[21] Having considered those arguments and having considered the definition of ‘property’ in the Crimes Act, noting that the definition has recently been extended to include money and noting that it is cast as widely as possible to include any kind of interest in property, the view I take is that an offence has been committed.

[22] I believe that the complainant continued to have at the very least a beneficial interest in that money or in the credit of that money until goods were delivered in terms of the contractual arrangements entered into by the parties through TradeMe.

[23] It would be unfair to draw any conclusions as to the state of mind or the intentions of the defendant in relation to the vehicle since no prosecution evidence was offered in that regard. I do not know yet whether such a vehicle ever existed or if it did whether Mr Vaalepu ever had any interest in it such as would have entitled him to sell it. So in the absence of evidence from either party, I make no comment on that.

[24] But I am satisfied on the basis of what I have heard from him (at least through the video interview) that although he was responsible for sending the deliberately false and dishonest email to Mr Evans offering a refund he did not at any time have any intention to refund the money and thereby defrauded Mr Evans of his property.

[12] Counsel for the appellant and the Crown, in my view correctly accepted that the allegation of criminal conduct in this case was properly covered by section 240

and the amendment to an allegation under section 219 unnecessarily complicated what was a relatively straight forward case.

[13] The appellant had made it clear in his advertisement on TradeMe that the deal was that the successful bidder for his station wagon pay him the money which he would use to pay his fines to release the car from its impound. He would then deliver the car to the purchaser.

[14] There was no evidence called by the prosecution to suggest that the appellant did not use the money in the way he said. The Police case was, therefore, essentially that the appellant convinced the complainant to pay him the money when the appellant had no intention of delivering any vehicle to him. If proven, this would establish an offence was committed under section 240(1) of the Crimes Act. That section provides as follows:

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

(b) in incurring any debt or liability, obtains credit; or

(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

(d) causes loss to any other person.

[15] I am satisfied the appellant could not have been convicted of theft of the money pursuant to section 219 of the Crimes Act. He was, as the parties agreed, entitled to use the complainant’s money, prior to providing him with the car. The appellant made it clear to potential purchasers of the vehicle that they would need to pay the money to him which he would then use to repay the fines to release the vehicle which he would deliver.

[16] Once the money was paid into the appellant’s bank account the complainant had no interest, beneficial or otherwise, in the money. And so at that time the appellant could not have been convicted of theft of the money from the complainant. Nor is the appellant’s intention to refund the money directly relevant to the alleged offending as the Judge said. The crime is alleged to have happened when the appellant, by deceit, obtained the complainant’s money when (as alleged) he had no intention of keeping his side of the bargain by providing the car.

[17] The crime was either committed (or not) well before the appellant expressed any intention to refund the money. That evidence might be relevant to the appellant’s state of mind at the time the money was obtained, but has no direct relevance to the offending.

[18] The appellant, therefore, could not have been convicted of theft of the money on the facts of this case.

[19] This appeal must, therefore, be allowed for the reasons given and the appellant’s conviction for theft of $1,740 quashed.

[20] Counsel for the appellant urged me then not to send the case back to the District Court for rehearing. She submitted that the Judge’s remarks at paragraphs [10] and [11] made it clear that he was satisfied that the prosecution could not prove beyond reasonable doubt the elements of a change under section 240. She submitted that the Judge had, therefore, effectively rejected the charge under section 240 by amending it to allege theft pursuant to section 219.

[21] The power to amend information is set out in section 43 of the Summary Proceedings Act. It expressly allows the substitution of one offence for another. It does not require a Judge to be satisfied that the prosecution cannot prove the original charge. If a Judge considers a different charge more properly fits the allegations then he may substitute one for the other.

[22] To return to section 240, the prosecution needed to prove that the appellant by a deception and without claim of right caused loss to any person (ss(d)), here alleged to be the complainant. Deception is defined in subsection (2) in this way:

(2) In this section, deception means—

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—

(i) knows that it is false in a material particular; or

(ii) is reckless as to whether it is false in a material particular; or

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

(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

[23] The prosecution case was that the appellant had no intention of supplying the car to the complainant and that his representation in the advertisement was intended to deceive the complainant into departing with his money. If these circumstances were proven, the appellant could have no claim of right.

[24] After hearing I allowed counsel for the appellant and respondent to file further submissions on the question of disposition of this appeal. Given my view, however, it is not necessary for me to consider those submissions. I am satisfied that the Judge in deciding to amend the information had concluded that the prosecution could not prove the section 240 charge beyond reasonable doubt.

[25] The first point that can be made is that although as I have observed it is not a necessary pre-requisite, it is difficult to understand why a Judge in these circumstances would amend an information unless he thought the case before him (or her) did not establish the charge faced but did establish another crime.

[26] Secondly, although at paragraphs [10] and [11] of his decision the Judge does not make firm findings, I am satisfied he clearly indicates he cannot reject as untrue the appellant’s claim that when he received the money he was in possession of a

Subaru motor vehicle and he intended to deliver it to the complainant. It was for the prosecution to establish beyond reasonable doubt a deceit if they were to prove the elements of a crime under section 240. The deceit they had to establish was that the appellant had no intention of delivering any vehicle to the complainant upon receipt of the money from the complainant.

[27] On the Judge’s view of the evidence they could not do so. Prosecution could not contradict Mr V ’s statement that he owned a Subaru Station Wagon, nor could they directly at least contradict his evidence that he intended to deliver the vehicle to the complainant. As the Judge said the prosecution offered no evidence to contradict the appellant’s claim that he had a car for sale and he was intending to deliver the car to the complainant.

[28] This observation supports the view that the Judge was not satisfied beyond reasonable doubt the prosecution had proved a deceit. In those circumstances, therefore, it would not be proper for me to consider referring the matter back to the District Court nor would it be appropriate for me to consider whether I should enter a conviction under section 240. I am satisfied that the Judge in the District Court amended the information because the prosecution could not prove an offence had been committed under section 240. In those circumstances I need do no more than quash the appellant’s conviction.

_{[29] The appeal is allowed and the conviction quashed.}

Ronald Young J

Solicitors:

N Levy, Barrister, PO Box 10 909, Wellington, email: [e-mail]

M Snape, Luke, Cunningham & Clere, PO Box 10 357, Wellington, email: [e-mail]