THE QUEEN v. AARON STEWART

IN THE COURT OF APPEAL

1987, No. 66
(Criminal)

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JUDGMENT

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Power, J.A.:

1. The applicant in this matter faced 21 counts of evasion of liability for deception. The prosecution only proceeded upon the first 17 counts. In each case it was alleged that on an unknown date in February 1986 with intent to make default on an existing liability in relation to an amount owing in United States dollars with respect to the purchase of furs from Peninsula Fur Trading Ltd. the applicant dishonestly induced that company to wait for payment by falsely representing that the goods had been sold to him on a consignment basis and remained unsold.

2. The 17 counts involved furs, the subject of 17 invoices, delivered by Peninsula to Jade Furs Ltd. a firm of which the applicant was one of three directors. The deliveries were made between March and October 1983.

3. Peninsula is owned by Tricon (Furs) Ltd. of England which had bought the furs in Europe after processing by a Mr. Werner Schmidt. They were then sold through Peninsula to Jade. Mr. Hornburg, a director of Tricon, who was for some purpose at least, clearly the agent of Peninsula said, in evidence, that in December 1985 he and Mr Schmidt had met the applicant who complained about interest charges upon amounts owing in consequence of the purchase of furs by Jade from Peninsula. In consequence of this meeting there more general interest charges were offered to Jade.

4. Mr. Hornburg said in evidence that in February or early March 1986 he and Mr. Schmidt met the applicant in the lobby of the Holiday Inn Harbour View Hotel. I quote his evidence:

“We asked accused why he had not paid and he replied that he had stopped paying because we had issued a writ against him and he said that the 30,000 odd skin were all available and we could have them back. I was shocked he should say that. First time he raised it and we asked him to come and talk about it in our room but he said he was too busy.

Accused claimed he stopped paying because we had issued a writ against him. He said he still had the 30,000 furs. I presumed they were in his warehouse.

We had no further conversation.”

He went on to say that the 30,000 furs referred to were the subject of straight forward sales and that there was no special conditions of sale with regard thereto.

5. The charges rested very largely upon that evidence. It was suggested that the applicant had, by making the statements detailed therein, represented that the furs were delivered on consignment and that he still held 30,000 furs in his warehouse which could be returned to the Peninsula.

6. When the matter was called on this morning Mr. Harris who appeared for the Crown rose immediately to say that he was not seeking to support the conviction.

7. Having heard Mr, Harris and Mr. Litton, Q.C. J who appears for the applicant, We are satisfied that the trial judge did not turn his mind to consider either whether or not the representations had been believed or whether or not they had been acted upon. Had he done so he would have had to conclude that they were not believed as it was the evidence from Mr. Hornburg that he did not believe what the accused had told him. He said, to use his words, that:

“after accused told us he had the 30,000 odd skins as we thought accused was being deceitful-dishonest".

There was further no evidence that he had in any way acted upon the representation to extend credit or to put off payment of the amount owing.

8. This being so we are satisfied that Mr. Harris was quite correct in not seeking to support the conviction. Mr. Harris when so doing, however, made it quite plain that the Crown was not conceding that the representations had not been made as alleged and that the Crown took the attitude it did only because there was no evidence to show either that they had been believed or acted upon.

9. We therefore treat the hearing of the application as the hearing of the appeal and order that the conviction be quashed.

10.Mr. Litton, understandably in the circumstances, sought an order that the applicant have his costs. We have carefully considered the evidence in so far as it reveals the conduct and words of the applicant at the meeting in February 1986 and consequently thereto and are satisfied that he intended to convey to Mr. Hornburg that the goods had been delivered on consignment and that his words did convey that meaning. We are further satisfied that this was quite untrue. Such statement understandably gave rise to a real suspicion that he was involved in some sort of fraudulent conduct and his adherence thereto, when interviewed by the officers from the Independent Commission Against Corruption, cannot but have deepened that suspicion. The decision to prosecute was, undoubtedly, significantly influenced by his deceitful conduct and statements.

11. A further matter to which we can properly have regard when considering the application for costs is that the statement of Mr. Hornburg was very much stronger than the evidence which he actually gave. The evidence contained in his statement was sufficient, in our view, to warrant the charging of the prosecution.

12. For these reasons we consider that the application for costs must be refused.

13. Before leaving the matter we wish to comment upon the grounds of appeal. These came forward in three instalments. This court was being left in doubt whether it was the intention to pursue all three instalments caused inquiries to be made yesterday. Then we were informed that the original grounds of appeal would not be pursued. This information should have been conveyed without the court's prompting and would, had it been conveyed earlier, have saved a considerable amount of judicial time. We emphasize that as soon as a decision is made to abandon any grounds of appeal the court must be informed without delay.