Brown v Police HC Auckland CRI-2011-404-000119 [2011] NZHC 1239 (1 September 2011)

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_{Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street,
Auckland 1140}

[1] This is an appeal against conviction and sentence on one charge of dishonestly using a document and one charge of attempting to use a document pursuant to s 228(b) of the Crimes Act 1961.

[2] The District Court Judge found that Mr Brown knew that he was using counterfeit $50 notes to purchase goods from Mr Singh. The judgment turned on credibility findings including apparent contradictions between Mr Brown’s evidence and his partner’s evidence.

[3] The central issues in the appeal are whether the Judge put too much weight on apparent inconsistencies and too little weight on objective evidence that pointed to the innocence of Mr Brown.

[4] The appellant usefully sets out a chronology of the main facts. I will broadly adopt them for ease of reference.

[5] On the morning of Sunday 23 January 2010, Mr Brown went to a liquor store and purchased liquor and cigarettes using a $50 note and a $20 note from Mr Singh. Later that day Mr Brown went back to the store and purchased more liquor and cigarettes using a further $50 note and a $20 note.

[6] On the second occasion Mr Singh gave the notes to his assistant who spotted that the $50 note did not look right. This was raised with Mr Brown. Mr Brown agreed that the notes did not look right and offered to get some real money to compensate the shopkeeper. He left his driver’s licence with the counterfeit notes as security until he returned with some real money.

[7] When the appellant was interviewed by the police he admitted that he had handed over the counterfeit notes, and gave the identity of his next door neighbour who he said had given him the money.

[8] Helpfully, the appellant has identified the following matters as undisputed: (a) That both $50 notes submitted in evidence are counterfeit;

(b) That Mr Brown presented a counterfeit $50 to the shopkeeper on the afternoon of 23 January 2010.

There has to be sufficient evidence, if not direct by admission, or direct by witnesses who come to say that Mr Brown told them or related to them in some way or other in a way that showed them he had knowledge and knew, and they can tell the Court of that, - that knowledge is imported by inference and of course that is the everyday diet of the Court when a state of mind is the issue in the case; inference. Inference has to be logical and reasonable, and strong enough to lead the Court to conclude beyond reasonable doubt that the requisite knowledge was held by Mr Brown, that these notes when he handed the first one over and the second one over, were indeed counterfeit.

Again, as I have said, it is not clear whether it was handed over with the $20 on top of the $50 the second time but in a sense that does not matter, the case being that clearly, and I accept this, these are counterfeit notes. They obviously are. Therefore an inference must be capable from that fact being sheeted home to Mr Brown that he knew he was holding in his hands, when he went into the shop, counterfeit notes.

His evidence is quite simple, that the bloke next door who he helps out because he does not have a car asked him to go and get some grog for him and some ciggies. He does shopping for him sometimes, Mr Brown says, and this happened twice. The first time his partner told him about it, that the guy next door wants him to get the stuff and the money was put on the computer table to buy liquor and cigarettes. He said that this was so that his partner and the person next door could drink. He was not drinking and wanted to distance himself really from alcohol so he was just doing a favour but it was not going to be anything that involved him.

[12] The Judge then addresses Mr Brown’s partner’s evidence. He noted that her evidence was that the man next door was ―actually his brother-in-law, and his partner says that the alcohol was purchased so the three of them could party or drink.‖ He also said that she was only given a $50 note by her brother, so ―Mr Brown then, on that basis, has lied about the extra $20 for on the computer table, as his partner or wife has said, she simply put the $50.‖

[13] The Judge then considers that the implications of these inconsistencies are that Mr Brown’s evidence has fallen short on a couple of quite material points in terms of the credibility test. He therefore is assured by this that ―the inference that the police asked to be drawn, it is safe to draw for conclusion; that he knew what was going on. He has downstated his connection with the man next door, and therefore one can consider it safe to say he has downstated the truth in respect to what was going on in his own state of mind.‖

[12] So what are the implications of those little trips, and they are I think quite major implications in respect of credibility, regrettably for Mr Brown.

[15] In light of Austin, Nichols & Co Inc v Stichting Lodestar,[1] if necessary I am required to reach my own view on the merits. Nevertheless, some cognisance should be given to the benefit that the District Court had in seeing and hearing the witnesses and then in forming an assessment as to credibility. I consider there needs to be a cogent reason for me to disturb such credibility findings.

[16] As foreshadowed above, the key issue in this case relates to the credibility findings made by the Judge against Mr Brown. This is significant because a core component of the charge is that it must be proven that Mr Brown, with intent to

obtain property ―dishonestly‖ used any document. Section 228 of the Crimes Act states:

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration, —

(b) dishonestly and without claim of right, uses or attempts to use any document.

dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority

[18] In referring to this definition, the Supreme Court in Hayes v R[2] observed:

[34] ... the word ―belief‖ is not accompanied by the word ―honest‖ [and] there is no suggestion that the belief has to be reasonable or based on reasonable grounds. It is the existence of the belief which matters, not its reasonableness. ...

[19] The Judge’s primary finding relating to dishonesty is that the notes were obviously counterfeit. This reasonably grounded an inference that Mr Brown knew that the $50 note was counterfeit. The defendant, now appellant, seeks to displace that logical inference by referring to evidence of the conduct of the appellant at the time. The appellant’s primary contentions and the respondent’s reply is usefully described in submissions as follows:

(a) On two occasions the shopkeeper did not notice the counterfeit $50 notes, so why would the defendant – The shopkeeper’s daughter did notice the counterfeit note on the second occasion which is why it was not successfully used. On the first occasion, the $50 note was covered by a genuine $20 note. In addition, the shopkeeper’s opportunity for inspection was fleeting compared to the Appellant’s.

(b) That when offered the notes back the defendant did not retrieve the evidence and flee but gave notes back to the shopkeeper until he returned – the Judge duly considered this fact in connection with the

		Defence’s submissions that this was not consistent with a guilty mind. The shopkeeper retained the notes because the Appellant was unable to pay the $30 he asked for. The Appellant was well known to the shopkeeper, so fleeing was not a viable option. Therefore, the fact that the Appellant agreed to leave the counterfeit notes once he had been discovered does not imply that he was innocent.
	(c)	That the defendant was a regular at his local liquor store and was known – The fact that the Appellant was a regular and was known has little bearing on whether he knew that the notes were counterfeits.
	(d)	That the defendant offered his current drivers licence as security when leaving to obtain genuine currency – The Shopkeeper gave evidence that his daughter demanded identification from him. The Appellant’s suggestion is that his willingness to do so suggests he was innocent. However, another possible explanation is that he may have hoped that cooperating with the shopkeeper would reduce the chances of prosecution, given that he was already well known and fleeing was not a viable option.
	(e)	That the drivers licence was the only evidence that enabled Police to find the defendant shortly after he left the shop – The Appellant acknowledges that he was already well known to the shopkeeper. For the reasons stated above, his willingness to provide the drivers licence does not demonstrate that he was innocent.
	(f)	That there was no prosecution evidence to suggest that the defence had consumed liquor – This has little bearing on whether the Appellant had knowledge of the counterfeit notes.
[20]	The	appellant also contends that apparent inconsistencies between	his

partner’s evidence and his own were not sufficiently cogent or reasonable to offset the reasonable doubt generated by the abovementioned evidence.

[21] I respectfully disagree with the Judge’s reasoning on the apparent inconsistencies. I deal first with the finding that Mr Brown downstated the connection with the man next door. The notes of evidence record that Mr Brown referred to his neighbour as ―Mr Tere‖. His partner’s name is Tangi Tuanei Tere. Unsurprisingly, they are related. If Mr Brown was downstating his connection he was not doing it in a particularly sophisticated way. Ms Chang suggested the Judge was referring to Mr Brown’s utterances at the time of the offending. If the Judge was doing this, I do not consider that it leads to an inference that Mr Brown was

downstating the truth. It might be equally inferred that Mr Brown quite naturally did not want to overtly implicate his brother-in-law at that time. But by the hearing he was not at all obfuscating on the identity of the neighbour. Accordingly, the fact that Mr Brown did not expressly refer to his brother-in-law does not appear to be a strongly compelling basis for a finding of lack of credibility.

[22] As to the findings on the details of the money given to Mr Brown and whether or not he was drinking with Ms Tere and her brother, these might be said to be matters at a finer grain that do not by themselves provide a compelling basis for discrediting Mr Brown or displacing any reasonable doubt that may have arisen as a consequence of Mr Brown’s evidence. Ms Tere said she was drunk at the relevant time. Mr Brown says he got petrol in return for running the errands for them. There is no evidence to suggest that Mr Brown was intoxicated at the time of his arrest. All of this provides a reasonable basis for a different conclusion.

[23] Given the significance placed on the alleged inconsistencies by the Judge, I consider that there is a cogent basis for me to review the evidence and form my own view on the proper outcome, if I am able.

[24] The starting point is that the notes were obviously counterfeit. Mr Brown accepted this. Counsel for the appellant correctly notes however that Mr Singh was fooled by the counterfeit notes. He was a retailer regularly handling such notes and could be expected to spot obvious counterfeits. But as the respondent points out, a busy unsuspecting shopkeeper could readily miss even an obvious counterfeit. These tensions were resolved by the Judge through a firsthand interpretation of the nuanced evidence as it was given. In this case it was particularly important to inspect the notes, as well as to assess the credibility of the witnesses. While I can read the notes of evidence, I do not have before me the counterfeit notes and I cannot judge the nuanced way the evidence was presented. In these circumstances I am prepared to recognise that the District Court Judge had the benefit of hearing all of the witnesses in forming this overall view and in deciding what should be reasonably attached to the evidence. I am therefore prepared to accept that the respondent

established a case of dishonesty beyond reasonable doubt, based on a logical inference that the counterfeit notes would have been obvious to Mr Brown.

[25] I also consider that the evidence relied upon by the appellant is not sufficient to displace this finding of culpability. The result might have been different had the counterfeit notes not been so obvious. Then the matters raised by the appellant might cumulatively preclude the Court from finding the elements proved beyond reasonable doubt. But by themselves, the matters raised by the appellant, even if viewed favourably, do not do this.

[26] In summary, when the apparent inconsistencies relied upon by the District Court Judge are put to one side, the primary finding was nevertheless sufficient to establish beyond reasonable doubt that the offending took place.

[27] For completeness I would find it surprising if weight was attached to the apparently muted reaction from Mr Brown when the counterfeits were discovered. There may be many reasons for such a reaction, including an obvious sense of shock and humiliation at being unintentionally implicated with a crime within one’s immediate community. One also has to be mindful of the cultural norms that might be at play in such a context. For my part had this factor been a paramount consideration, I would have been inclined to allow the appeal.

[28] In any event, in the circumstances described above, I am not prepared to allow the appeal. The appeal is dismissed.

[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.
[2] Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321.

High Court of New Zealand Decisions

Brown v Police HC Auckland CRI-2011-404-000119 [2011] NZHC 1239 (1 September 2011)