JOHNSON v NEW ZEALAND POLICE [2019] NZHC 2966

JOHNSON v NEW ZEALAND POLICE [2019] NZHC 2966 [13 November 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-67[2019] NZHC 2966BETWEEN SHAUN JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 12 November 2019Counsel: T W Luders and J E Spiers for AppellantS K Brennan for RespondentJudgment: 13 November 2019JUDGMENT OF THOMAS JIntroduction[1] Mr Johnson appeals against his conviction for obtaining $771 by deceptionthrough a Trade Me auction.1 Mr Johnson was convicted after a Judge-alone trial inthe District Court on 5 April 2019.2 His ground of appeal is that the District Courterred in its assessment of the evidence and failed to provide adequate reasons.Background and District Court trial[2] Most of the facts are not disputed. In 2016, Mr Johnson operated an addressverified account on the online auction website, Trade Me. There was evidence in theDistrict Court of several transactions made, apparently without issue, around the timethe offending is alleged to have occurred.1 Crimes Act 1961, ss 240(1)(a) and 241(b); maximum penalty one year's imprisonment.2 Police v Johnson [2019] NZDC 6577.[3] On 1 June 2016, the complainant purchased an Apple MacBook Pro laptopfrom Mr Johnson for $756 plus $15 for an overnight courier. The complainant thenpaid $771 into Mr Johnson's bank account and provided his address for delivery. Themoney appeared as cleared funds in Mr Johnson's bank account the same day.[4] On 2 June 2016, the complainant sent two emails to Mr Johnson requesting atracking number and asking for confirmation Mr Johnson had sent the laptop. Thatevening, Mr Johnson replied:Hi, yes my wife was going to post today she will be home around 10 toconfirm, thanks.[5] On 5 June 2016, the complainant sent a further email to Mr Johnson asking ifhe had sent the laptop and again requesting the tracking number. The complainantsent a further email on 7 June 2016, saying he had not yet received the laptop andpointing out it was supposed to be sent by overnight courier. On 8 June 2016, thecomplainant sent a further email consisting of a series of question marks andexclamation marks. Mr Johnson replied on 8 June 2016 as follows:Hi, you should have it buy now, will find tracking number and check what thestory is.[6] Nearly two hours later, the complainant sent a further email to Mr Johnson:Can you please reply asap, need it for urgent last week Thursday or Friday, itsalmost week mate, please ask your wife asap and reply with tracking number.[7] There was no further correspondence from Mr Johnson. The same day(8 June), the complainant reported Mr Johnson's account to Trade Me, explaining ithad been over a week, Mr Johnson had not supplied the tracking number for theovernight courier and he had not been clearly responding. Trade Me disabledMr Johnson's account on 14 June 2016 and advised the complainant it suspected theaccount to be fraudulent and he should contact police. That same day, the complainantsent one further email to Mr Johnson consisting of another series of question marksand exclamation marks.[8] The laptop never arrived. The complainant provided a statement to police on21 June 2016. Police made several inquiries in relation to the complaint and, aroundOctober 2016, obtained a production order from the District Court for Mr Johnson'sbank account, which was served on the fraud investigation team with Mr Johnson'sbank. Police contacted Mr Johnson on 17 January 2018. When asked about thetransaction involving the complainant, Mr Johnson declined to comment.[9] The issue at trial was whether Mr Johnson sent the laptop. The prosecutioncalled one witness, Erin Read, the Acting Team Leader of Investigations at Trade Me.Ms Read provided evidence that Mr Johnson's account was created on 28 May 2016,two days before the transaction in question. It was registered under the username"trademetrader23". The name provided upon registration was Shane Johnson and thedate of birth 13 April 1993.3 Mr Johnson's first name is Shaun and he was born in1981.[10] Ms Read confirmed that Mr Johnson had created five separate listings between28 May 2016 and 30 May 2016. In cross-examination, Ms Read confirmed that, toher knowledge, the complainant was the only Trade Me user to have complained aboutMr Johnson's account. On the basis of these concessions, the defence applied at theend of the prosecution case for the charge to be dismissed because the prosecutioncould not exclude the reasonable doubt that the laptop had not arrived due to a postalfailure.4[11] The Judge refused to dismiss the charge.[12] The defence called one witness, Mr Johnson. Mr Johnson confirmed those fiveitems were the only ones he listed with the account. He said he had an arrangementwith an insurance company whereby he would purchase Apple products, refurbishthem and on-sell them through Trade Me. I observe in passing that, while three of theother listings were for Apple products, one was for a motor vehicle. Mr Johnsonreiterated that he had not received any complaints from the other four purchasers.3 Ms Read's formal written statement was read as the first part of her evidence in chief at the trial.It stated that the name provided was "Shane Johnson". Responding to the police prosecutor'squestions, Ms Read said the name registered was "Shaun Johnson". This was later clarified as"Shane Johnson". Mr Johnson also signed his email exchanges with the complainant "Shane".4 Criminal Procedure Act 2011, s 147.[13] In relation to the sale of the laptop to the complainant, Mr Johnson said heasked his then partner to post the item on his behalf. In relation to the email he sentto the complainant on 2 June 2016, Mr Johnson said he had checked with his partnerand she said she sent it. He provided the name of his partner but explained they hadnot been together for about three or four years. He said he had done "all [he] couldwithin [his] power to get her to come to give evidence to say that she had sent it" butthat they were no longer in contact and she had mental health problems.[14] When pressed in cross-examination on exactly when he and his partnerseparated, Mr Johnson said:As I just said that's something I don't want to talk about, it makes me upset.When asked again, Mr Johnson said: "I don't know. It seems like 10 years ago".[15] In relation to the email correspondence with the complainant, Mr Johnson said,although he considers himself "good at technology", email is not one of his "strongerforms of communication". He said he preferred to call or text. When asked whetherhe checked the emails from the complainant, Mr Johnson said not much checking wasdone after he had notified the complainant that his partner had sent the laptop. Heaccepted he had seen the further emails from the complainant but said this was notuntil later. He said he assumed the laptop had arrived because the emails hadeventually stopped, and he did not feel the need to follow up.[16] Mr Johnson said he received no follow-up from Trade Me or the police. Hesaid the next time he was spoken to about the transaction was when police summonsedhim to Court in January 2018.[17] After re-examination, the Judge briefly questioned Mr Johnson:Q You knew on the 17th of January last year that the computer hadn'tarrived. That's when this policeman came to see you, the 17th ofJanuary 2018, over a year ago?A Yes.Q Have you made any attempts since then to repay the purchaser?A I am fully under the, I do not think he did not receive it.Q Well you haven't challenged his evidence that he didn't.A Yes, I understand that's how this charge has come about. But also,just with my train of thought, also seen here as IT, he has the username"IT" whatever it was, "IT special" whatever. He is aware that theyare expensive items, and this could just be a ploy or some dishonestbehaviour by him to have something for nothing.Q It could be dishonest behaviour by you too, couldn't it?A Well that's not how I post, had things going.Q Well, I'll tell you bluntly, Mr Johnson, I find you completely andtotally dishonest.A Sorry?Q I find you completely and totally dishonest.[18] The Judge's decision was very brief. Only two paragraphs are relevant toconviction:[1] I will not trouble everyone with the recitation of the facts.[2] The charge is proved. I find that Mr Johnson is a dishonest person.He knew on 17 January last year that the computer had not reached itsdestination. He has made no attempt since then to repay the purchaserthe $771. That is behaviour that is outrageous in any commercialsense. I find you guilty.Obtaining by deception[19] To establish a charge of obtaining by deception, the prosecution must provebeyond reasonable doubt that:5(a) with an intent to deceive;(b) the defendant made a representation that was materially false;(c) knowing of the falsity or being reckless in that regard; and(d) obtained ownership, possession or control of something of value interms of s 240(1)(a).5 See Crimes Act 1961, s 240; and R v Morley [2009] NZCA 618, [2010] 2 NZLR 608 at [55].Case on appeal[20] Mr Luders, for Mr Johnson, submitted that the Judge failed to provide adequatereasons for his decision and the reasons given suggest the Judge erred in law. In thisregard, Mr Luders highlighted the Judge's comments about Mr Johnson's conductafter he was charged in January 2018. Mr Luders submitted this conduct had nobearing on proof of the charge, which depended on Mr Johnson's knowledge andintent at the time he obtained the money from the complainant on 1 June 2016.[21] Mr Luders noted that the prosecution case relied on an inference thatMr Johnson never sent the laptop and never intended to do so. He submitted therewere two inferences equally available on the evidence, the other being the laptop wassent by Mr Johnson but it did not arrive due to postal error. This possibility wasbolstered by the alleged lack of investigation at the time, the fact Mr Johnsonmaintained both at the time and in cross-examination that the laptop had been sent andthe fact Mr Johnson's four other Trade Me transactions occurred without problem. InMr Luders' submission, this amounted to a reasonable doubt and the Judge erred infinding Mr Johnson guilty.[22] Furthermore, Mr Johnson was, in Mr Luders' submission, prejudiced by thedelay in bringing the charge, which did not occur until approximately 18 months afterthe Trade Me transaction, with the trial occurring almost three years after thetransaction. In those circumstances, the prospect of obtaining the tracking numberwas, in his submission, impossible, although he acknowledged there was no evidenceto support that proposition.[23] Mr Brennan, for the Crown, acknowledged the Judge erred by failing toprovide adequate reasons, but submitted no miscarriage of justice had occurredbecause the guilty verdict was supported by the evidence at trial. Mr Brennansubmitted Mr Johnson's explanation that he assumed the laptop had been received wasunconvincing. Mr Johnson's evidence that his partner sent the laptop wasinadmissible hearsay and an adverse inference could be drawn from Mr Johnson'sfailure to call her as a witness or provide other evidence the laptop had been sent.66 Trompert v Police [1985] 1 NZLR 357 (CA) at 358.[24] In Mr Brennan's submission, the Judge's remarks on Mr Johnson's conductfrom January 2018 were relevant to his assessment of Mr Johnson's credibility, ratherthan any element of the charge. He submitted this Court should exercise cautionbefore interfering with the Judge's credibility finding.Analysis[25] To succeed on appeal, Mr Johnson must establish that the Judge erred in hisassessment of the evidence to such an extent that a miscarriage of justice has occurred,or that a miscarriage of justice has occurred for any other reason.7 A miscarriage ofjustice is an error, irregularity, or occurrence that created a real risk that the outcomeof the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.8A "real risk" is where "there is a reasonable possibility that a not guilty (or morefavourable) verdict might have been delivered if nothing had gone wrong".9[26] In Sena v Police, the Supreme Court recently explained that a challenge to atrial judge's assessment of the evidence is an appeal by way of rehearing conductedon the basis of the principles established in Austin, Nichols & Co Inc v StichtingLodestar.10 That means the appellate court must reach its own view on the evidence,although the burden remains on the appellant to demonstrate that the trial judge erredin his or her assessment. Appropriate weight must be given to advantages the trialjudge would have had in assessing matters such as credibility.11[27] The Supreme Court also emphasised that trial judges are required to providesufficient reasons for their determinations, including determinations on credibility:12... We see s 232(2)(b) as premised on the assumption that the s 106(2) (andcommon law) requirement for reasons has been satisfied. Connell and Eideindicate the kind of reasons which judges should provide. They should showan engagement with the case, identify the critical issues in the case, explainhow and why those issues are resolved, and generally provide a rational andconsidered basis for the conclusion reached. Reasoning which consists of aconclusory credibility preference is unlikely to suffice. The language of7 Criminal Procedure Act 2011, s 232(2).8 Section 232(4).9 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].10 Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007]NZSC 103, [2008] 2 NZLR 141.11 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29]–[31].12 Sena v Police, above n 10, at [36] (emphasis added).s 232(2)(b) reflects an assumption that the reasons given by a judge will reflectthat judge's assessment of the evidence and why that assessment resulted in aconviction. A failure to provide such an assessment frustrates the operation ofs 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasonedjudgment is essential to a fair trial. A failure to provide a reasoned resolutionof a significant evidential dispute may, alternatively, suggest amisapprehension of the effect of the evidence, for instance a misapprehensionof the significance of the dispute. [28] The Supreme Court acknowledged that imperfection of expression ispractically unavoidable and stressed that appellate courts should assess the adequacyof reasons contextually, allowing for the need to balance the prompt determination ofcriminal cases. The adequacy of reasons must be assessed in light of the type of caseand issues involved, including the seriousness of the charge.13[29] A reasoned judgment must contain an adequate survey of the facts, the criticalissues must be identified and an explanation given of how and why those issues havebeen resolved.14 Proof of the charge in this case depended entirely on selecting oneinference over another, or at least ruling out the reasonable possibility of the inferencethat the laptop was not delivered due to postal error. An inference is a logical andrational conclusion drawn from reliable evidence. It goes without saying that aninference must be reasoned. Preferably, that reasoning should be explicitly reflectedin the judgment. That was not done here.[30] I agree with Mr Brennan that, by referring to Mr Johnson's conduct in January2018 as "outrageous in any commercial sense", the Judge appears to have beenproviding reasons for his finding that Mr Johnson was a "dishonest person". It isevident from the Judge's exchange with Mr Johnson following re-examination that theJudge found Mr Johnson to be a dishonest witness, at least in part on the basis of hisanswers to the Judge's questions.[31] That said, Mr Johnson's decision not to offer a refund to the complainant afterbeing charged with an offence is perhaps more properly a reflection of his moralityrather than his credibility. Furthermore, in light of the Supreme Court's emphasis inSena v Police on the provision of reasons for credibility findings,15 little weight can13 At [37].14 Bublitz v R [2019] NZCA 364 at [75].15 Sena v Police, above n 10, at [36].be afforded to a credibility finding of a trial judge in circumstances where an appellatecourt finds that inadequate reasons were given for that finding.[32] In any event, having reviewed the formal written statements, which were readinto the evidence, and the (rather short) transcript of evidence in its entirety, I amsatisfied no miscarriage of justice arises.[33] The first feature of note in this case is the evidence from Ms Read concerningMr Johnson's Trade Me account. The account was created on the very day Mr Johnsonlisted the laptop for sale, and a mere two days before it was purchased by thecomplainant. Mr Johnson created the account under a different first name and with anincorrect date of birth. The account operated for a period of only two weeks before itwas shut down by Trade Me on suspicion of being fraudulent. Although four otherlistings were made around the same time as the laptop, it appears that no furtherlistings were made after payment was received from the complainant. This evidencesupports an inference that Mr Johnson was attempting to conceal his identity and thatthe account was created for fraudulent purposes. I say that notwithstanding the otherfour transactions were apparently completed without any problem.[34] The second feature of note is Mr Johnson's conduct around the time of thetransaction. No satisfactory explanation was ever provided for why Mr Johnson didnot provide the complainant with the tracking number. The complainant requested thenumber on three occasions. Mr Johnson's explanation that he did not check his emailsvery often did not address this concern. Mr Johnson was clearly aware thecomplainant had requested the tracking number because, on 8 June 2016, he promisedto provide it but never followed through.[35] The third feature of note is the unconvincing nature of some of Mr Johnson'sevidence. First, he said he only became aware the laptop had not been delivered whenhe was charged with this offence in January 2018. However, that does not square withthe persistence of the complainant's emails and the evidence Mr Johnson's Trade Meaccount was disabled on 14 June 2016.[36] Secondly, Mr Johnson was evasive and inconsistent when questioned aboutwhen he separated with his partner. Initially, he said in evidence-in-chief that it wasfour years ago, then said it could be three years. When pressed in cross-examination,he started by avoiding the question, then said he did not know, then said it "seems like10 years ago". At this stage the prosecutor clarified whether Mr Johnson and hispartner were together at the time of the transaction, and Mr Johnson insisted that theywere. He then said it was longer than three years ago. Notably, the trial took place inApril 2019, less than three years after the alleged offending.[37] Finally, Mr Johnson's response to the Judge's line of questioning was evasiveand unconvincing. In particular, when pressed on why he did not refund thecomplainant in January 2018, Mr Johnson challenged the honesty of the complainantby suggesting, without any evidential basis, the complainant had in fact received thelaptop and this proceeding was a dishonest attempt by him to obtain the laptop forfree. Quite how that could be the case, given the complainant had paid for the laptop,was unclear.[38] The last feature of note was the absence of evidence that Mr Johnson mightnaturally have been expected to call if he were innocent.16 In this regard, I refer toevidence from Mr Johnson's previous partner. There was no admissible evidence thatshe did in fact post the item. While Mr Johnson's evidence that she told him she hadsent it was in the context of his being asked whether he had checked the item had beensent, he could reasonably have been expected to bring evidence that the laptop hadbeen posted. Even if he and his former partner were no longer on good terms, shecould have been subpoenaed to give evidence. In saying that, when regard is had tothe other matters to which I have referred, there was sufficient evidence to enable thecharge to be proved, even without relying on this adverse inference.[39] Drawing the threads together, Mr Johnson's evidence lacked credibility andfailed convincingly to explain his actions in June 2016.17 In those circumstances, therewere legitimate grounds for the Judge to prefer the inference that Mr Johnson never16 See Trompert v Police, above n 6, at 358.17 Although I do not take it into account, I take some comfort in the fact the trial Judge reached thesame conclusion as to the general honesty of Mr Johnson as a witness.sent the laptop and never intended to send it (if it even existed) when he listed it onTrade Me and subsequently accepted the complainant's money. This was notguesswork or speculation, but a logical and rational conclusion reached after anassessment of all the evidence. It was not a case where the evidence would supporttwo conclusions of similar weight. Accordingly, the Judge did not err by convictingMr Johnson. There was no miscarriage of justice.[40] The guilty verdict was supported by the evidence. In those circumstances,Mr Johnson cannot be said to have received an unfair trial.Result[41] The appeal is dismissed.Thomas JSolicitors:Public Defence Service, Wellington for AppellantCrown Solicitor, Wellington for Respondent