S v Police HC Rotorua CRI-2007-077-1151 [2009] NZHC 222 (25 February 2009)

Last Updated: 27 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2007-077-001151}

S AND V

Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing: 25 February 2009

Appearances: Mrs A Ngapo-Lipscombe for Ms S Mr S Ngapo-Lipscombe for Mr V Mr M Wright for Respondent

Judgment: 25 February 2009

(ORAL) JUDGMENT OF LANG J [on appeals against conviction]

Solicitors:

Ngapo-Lipscombe Law, Tokoroa

_{Crown Solicitor, Rotorua}

SPENCE AND VISSER V NEW ZEALAND POLICE HC ROT CRI-2007-077-001151 25 February 2009

[1] Mr V and Ms S faced charges in the District Court at Tokoroa of directly accessing a computer system, namely ‘Trade-Me’, and thereby by deception and without colour of right obtaining pecuniary advantages from eight named complainants. The charges were laid under s 249(1)(a) of the Crimes Act 1961.

[2] Each of the complainants alleged that she had purchased but not received hair extensions from the appellants, who operated their business of selling such products under different names on the ‘Trade Me’ website. The essence of the prosecution case was that the appellants had dishonestly and deliberately decided not to send the hair straighteners to the purchasers and to retain the monies that the purchasers had paid for them.

[3] After a defended hearing on 29 and 30 July 2008 His Honour Judge McGuire reserved his decision. He indicated that he would deliver his decision at a reconvened hearing on 7 August 2008.

[4] At the hearing on 7 August 2008 the Judge indicated to counsel that he proposed to substitute charges of theft by conversion under s 219(1)(b) of the Crimes Act 1961. He then heard submissions from counsel for the defence in relation to that proposal. Counsel for the appellants objected to the proposed amendment on the basis that their clients were prejudiced by it. The Judge rejected that submission in an oral decision delivered at the conclusion of argument.

[5] The Judge then orally delivered his reserved judgment in which he found four of the charges proved but dismissed the remaining charges. In each case where the Judge found a charge to have been proved, he concluded that the appellants had made a deliberate and dishonest decision not to send the goods to the purchaser and to keep the money that the purchaser had paid. He imposed a sentence of 80 hours community work on both defendants.

[6] Ms S and Mr V now appeal to this Court against their conviction. They say that the Judge did not have the power to amend the charges in the way that he did after he reserved his decision. In the alternative, they point out that they were

not afforded their rights under s 43(3)(d) of the Summary Proceedings Act 1957 to give further evidence and to require witnesses for the prosecution to be recalled.

[7] Finally, they argue that the Judge incorrectly dealt with the issue of mens rea

and that in effect he applied a reverse onus of proof.

[8] During the hearing before me counsel for the appellants accepted that it was open to the Judge to amend the charges in the way that he did. In my view this issue is placed beyond doubt by the decision of a Full Court of the Court of Appeal in Jones v Police [1998] 1 NZLR 447. In that case the Court of Appeal determined a point left open by the Court in the earlier case of Ministry of Transport v Nicol [1980] 1 NZLR 436. The Court of Appeal confirmed in Jones that, for the purposes of the power to amend an information under s 43, a summary hearing continues until such time as a reserved decision is delivered. It is therefore open to a Judge to amend the charge at any time up until he or she delivers a reserved decision.

[9] It was therefore clearly open to the Judge in the present case to amend the charges notwithstanding the fact that he had earlier reserved his decision.

[10] Once the Judge elected to amend the charges, however, the defendants were required by s 43(3)(c) to enter pleas to the amended charges. At that point they also had the right under s 43(3)(d) to call further evidence and require prosecution witnesses to be recalled for the purpose of further cross-examination.

[11] The record of the hearing on 7 August makes it clear that the appellants did not enter pleas in respect of the amended charges. In addition, the Judge delivered his decision without first giving them the opportunity to give further evidence and to require prosecution witnesses to be recalled. They contend that this led to real prejudice, because the thrust of the amended charges was quite different to that of the original charges.

[12] Counsel for the respondent accepted from the outset that the convictions could not stand because of these procedural deficiencies. His submissions were

directed largely to the proposition that I should remit the charges to the District

Court so that they could be reheard.

[13] The only issue that I therefore need to determine on appeal is whether or not the proceedings should be remitted to the District Court or whether matters should be allowed to rest as they presently stand.

[14] I have come to the conclusion for several reasons that it would be inappropriate in the present case to remit the charges for rehearing in the District Court.

[15] First, it appears that a full rehearing may be required and that it may not be open to the parties to agree that the evidence from the previous hearing is to form part of the evidence at the rehearing. In this regard counsel for the respondent has referred me to the judgment of Anderson J in Ennis v Inland Revenue Department HC NP AP 4/87 13 August 1987. If that is indeed the case a rehearing will obviously involve significant expense and inconvenience to all involved.

[16] Even if that was not the case, there are powerful reasons for the matter to be finally determined at this point and not by way of any rehearing in the District Court. First, the appellants have already served the sentence that the Judge imposed upon them. Secondly, the prosecution has had its desired effect. The defendants have now ceased trading in the business that gave rise to the charges. Moreover, they have now left the country and are currently residing overseas. As a result, they would be put to great trouble and expense in the event that the matter needed to proceed to a rehearing in the District Court.

[17] Finally, no issue of reparation arises because nobody is currently out of pocket. Each of the complainants eventually received the goods that she had purchased, albeit not until after the police commenced their investigation into the appellants’activities.

[18] For these reasons I have decided not to exercise my powers under s 131 to remit the matter for rehearing. Instead, the convictions are quashed and I make no further order.

Lang J