Wood v Police [2014] NZHC 187 (18 February 2014)

Last Updated: 26 March 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-043-003035 [2014] NZHC 187

UNDER the Summary Proceedings Act 1957

IN THE MATTER of an appeal against conviction pursuant to Section 115 of the Summary Proceedings Act 1957

BETWEEN DIANNE LESLIE WOOD Appellant

AND THE NEW ZEALAND POLICE Respondent

Hearing: 18 February 2014

Appearances: JM Woodcock for Appellant

AWM Britton for Respondent

Judgment: 18 February 2014

_{ORAL JUDGMENT OF TOOGOOD J}

WOOD v NEW ZEALAND POLICE [2014] NZHC 187 [18 February 2014]

Introduction

[1] On 9 August 2013, the appellant, Ms Wood, was found guilty by Judge

Roberts in the District Court at New Plymouth on one charge of obtaining credit of

$200,000 by deception. On 28 November 2013, the appellant was sentenced to undertake 125 hours’ community work, after the Judge was satisfied that she had repaid the total debt of $262,000 which included default interest.

[2] The appellant now appeals her conviction. Ms Woodcock acknowledges for the purposes of the appeal that the District Court Judge was entitled to find the appellant had knowingly made a false representation that a court order had been made requiring her to buy out her former partner’s interest in her home. She submits, however, the Judge erred in finding there was a causal connection between the false representation and the credit obtained by the appellant from the complainant.

Brief summary of factual circumstances

[3] The appellant met the complainant in this case, Ms Harris, through her work in New Plymouth as a self-described “Life Coach”. Ms Harris had recently been divorced and sought counselling or coaching to help her through a difficult period of her life. The services provided by the appellant apparently went well beyond mere counselling as she also provided business advice and natural health remedies to her clients. In this case, it seems the appellant also provided some legal assistance and took over the sale of Ms Harris’s property. In the course of providing these services, the appellant came to learn that Ms Harris had received a substantial amount of money following her separation from her husband.

[4] It is accepted for the purposes of this appeal that the appellant asked Ms Harris to lend her money which the appellant claimed she needed to buy out her own former partner’s interest in her house and to renovate the property for sale. The appellant applied substantial pressure to Ms Harris and initially persuaded the complainant to lend her around $500,000, that sum to be derived both from personal funds and from a family trust of which Ms Harris was a beneficiary. Although

Ms Harris wished to lend the appellant that large sum, despite being advised not to do so by her solicitor, that loan was not made because the trustee refused to allow part of the funds to be advanced by the family trust.

[5] On 14 December 2010, the appellant received a letter informing her that if she was not prepared to sell the property which she owned with her former partner, the partner’s lawyer would initiate legal proceedings in the Family Court to order the sale of the property. At 12:54pm that day, the appellant sent a text message to Ms Harris reading:

Ok. I nw have a court ordr on me 2 deal wit now as u let me dwn ad didn’t

honour ur word with da finance and nw im fced wit this court order so thk u.

[6] At 1:57pm she sent a further text reading:

Sori if I snapd b4 I just dnt want it 2 turn out this way 4 u ad i. We 2gethr hv oportuntys ad I love 2 wrk 4 u-u knw I love 2 make u a dol ad I knw I can.

[7] That was immediately followed by a text which read:

So plz help me nw. Thk u. Its hit me hard wit a court ordr nt thru my doing.

[8] Ms Woodcock makes a point that the prior loan arrangement to advance

$500,000 may have been, if not was, still under consideration at the time the text messages were sent.

[9] On 7 January 2011, the appellant received an email from her former partner telling her that unless she put the house on the market he would come over from Australia to sort it out without the appellant having any say. On 17 January 2011, the appellant and Ms Harris entered into a loan agreement for $200,000 (without the benefit of any assistance from her lawyer apparently), which was the amount Ms Harris had available from her personal accounts without recourse to the family trust. The advance was to be for a period of 12 months with an interest payment of

$12,000 at the end of the loan period and further interest payable on default. Arrangements were then made with the bank and the funds transferred to the appellant. The debt was not repaid at the end of the 12-month period and a complaint was made to the Police.

[10] The appellant was interviewed by the Police in December 2012. She accepted that at the time she sent the text messages on 14 December 2010 there was no court order actually in place.

The appellant’s submissions

[11] Relying on the judgment of the Court of Appeal in R v Morley,¹

Ms Woodcock submits that on the charge of obtaining credit by deception the prosecution was required to prove four ingredients, namely:

(a) an intention on the part of the appellant to deceive;

(b) a representation by the appellant that was materially false;

(c) that the appellant knew the representation was false or was reckless in that regard; and

(d) that the appellant obtained credit by the false representation.

[12] Ms Woodcock accepts that the Judge was entitled to find on the evidence that all ingredients apart from the fourth were made out. She argues, however, that the admitted deception made no difference to Ms Harris’s decision to make the advance to the appellant and that the Judge erred in holding that the false representation was a material factor in the appellant’s receipt of the funds.

[13] Analysing the evidence, Ms Woodcock refers particularly to the complainant’s response to an inquiry in cross-examination as to what it was that made up her mind to lend the appellant the money. Ms Harris referred to the appellant being absolutely beside herself, incoherent and hysterical and said that she did not want to see the appellant out on the street. Ms Harris said it was because of the appellant’s constant upset state, where she was hysterical at times, that she lent the appellant money. Ms Woodcock submits, therefore, that the evidence established

_{that it was the appellant’s upset state of mind and not the false representation as to}

¹ R v Morley [2009] NZCA 618.

the court order that caused Ms Harris to make the loan. She argues that the text messages sent on 14 December 2010 were irrelevant, in that they made no difference to the course of Ms Harris’s actions, as Ms Harris was already trying to find a way to make the advance.

The respondent’s submissions

[14] For the respondent, however, Mr Britton refers in his written submissions to the observations of the Court in Morley at [34] that a false representation need not be the only operative factor in the deception, so long as it played a material part in occasioning the loss or, as in this case, the obtaining of credit by the defendant. Mr Britton emphasises that the Judge was entitled to accept as credible and reliable the complainant’s evidence that she would not have made the loan if it had not been for the lie about the court order.

Discussion

[15] The transcript of the evidence given in the District Court establishes that, when challenged in cross-examination with the proposition that she had previously agreed to lend an even greater amount of money without there being a court order, Ms Harris maintained it was the text message and her conversation with the appellant about the court order that convinced her to lend the money. As she repeated on a number of occasions, she did not want to see the appellant out on the street.

[16] In re-examination, the complainant was asked to tell the Court what it was that finally compelled her to agree to lend the $200,000. She replied:

Dianne Wood was crying and she was absolutely inconsolable. She said that everything was being taken from her, that she was having to move out because Paul Capon [her former partner] had the Court order on her and he was acting on it and that was it, she’s lost everything and that’s when I said to her, “I won’t see you out on the street.”

[17] The Judge said that the complainant’s evidence hung together; it had a ring of truth about it; and it was reaffirmed by what the text messages actually said. Having seen and heard the complainant under close cross-examination, the Judge was

entitled to make credibility findings in her favour. I am satisfied that he was right to conclude as he did that the appellant’s deliberate pressure on the complainant to make the advance culminated with the unequivocal but false text messages about the making of the court order. The Judge was entitled to accept the complainant’s evidence that the unforgivable and outrageous attempt by the appellant to hold the complainant responsible for the appellant’s position was an operative factor in her decision to advance money in mid-January 2011.

[18] Once it is accepted, as Ms Woodcock concedes, that it was necessary for the prosecution to establish only that the false and knowingly deceptive representations about the court order were a substantial and operative factor in the complainant’s decision to advance the money to the appellant, conviction on the basis of the Judge’s factual findings was inevitable. I do not doubt that the appellant was properly convicted.

Result

[19] Accordingly, I dismiss the appeal.

......................................

Toogood J