Car dealer refused name suppression

Press, 25 September 1980, Page 5

Car dealer refused name suppression

A used car dealer has been discharged under section 347 of the Crimes Act i by Mr Justice Holland in the I High Court on two counts of use of a document and false pretence involving $lO,OOO. The indictment was never presented to the Court. His Honour discharged; John Hague, aged 33, a used; car dealer, and awarded him costs of $l5O but he refused an application to suppress his name.

“I am not willing to order suppression of his name,” his Honour said. “Although I have found that he should not have been prosecuted and there may be hardship in publication, it is desirable that criminal prosecutions be dealt with in open Court and there should be suppression only in exceptional cases. This is not such a case.

“I uplift the suppression made earlier and direct that my decision and my reasons for it may be published,” said his Honour.

Hague was committed for trial by Justices of the Peace in the District Court on a charge that with intent to defraud he obtained $lO,OOO from Finance and Discounts, Ltd. by a false, pretence by falsely representing that a 1979 Chevro-. let Blazer van, valued at $30,000. was purchased byChristopher Cliff Morris to obtain $lO,OOO on hire purchase. Messrs B. McClelland, Q.C., and G. F. Orchard appeared for Hague on the application that no indictment be presented. Mr N. W. Williamson appeared for' the Crown. In his decision his Honour said that the application for Hague’s discharge was made under section 347 of the Crimes Act. He had been committed for trial and the Crown prosecutor had lodged an indictment which had not yet been presented. Hague was a motor-ve-hicle dealer and -was approached by an individual with a car. He ■ knew the man who said that he wanted to . raise money. Hague filled out a hire-pur-chase agreement in respect of .he car, showing his business as being the owner of

ithe car and the other man as the hirer. .The agreement represented a sale for $30,000 with a deposit of $20,000 and $lO,OOO to be on hire purchase to Hague. It was then, as usual, discounted with a finance company. The first cheque in payment of the debt to the finance company was dishonoured, but the full amount to the finance company had now been paid. “The evidence, may disclose it but it is not clear to me as to who it was paid by

and it is immaterial in any event,” his Honour said. “I have no doubt that in accordance with the decisions leferred to me by the Crown prosecutor that there can be an intent to defraud when something is obtained even though there is no intention to economically harm the payer or transferor.” It appeared that the person who entered into the hire-purchase agreement was not the true owner of the vehicle at the time. The evidence showed that he was a part-owner with another, but the evidence did not disclose that that person had no authority to deal with the car. The evidence also disclosed that the registration of ownership was not in the name of the applicant for finance. There was no evidence that the true owner of the car at the time of the hire-purchase agreement was entered into had not given authority for such an agreement to be obtained. In order to carry out legally what was required, Hague no doubt should have purchased the car, paid out $30,000, and received the $20,000 back by way of hire purchase. No doubt he had not done that because he did not have the $lO,OOO immediately available. It was not available until the finance company had discounted the hire-purchase agreement. “There is no evidence, however, from which one can infer that the hirepurchase agreement was a sham. It was clearly entered into for the purpose of obtaining money, but on the evidence disclosed in the depositions, in my view, the trial judge would have to

direct the jury that as a matter of law on the evidence available, the agreement was at least capable of being valid and he may have had to say that in fact it was valid,” his Honour said.

There was no evidence that the finance company would not have advanced money on a discounted hirepurchase agreement to a previous owner of the vehicle. “That may be the case and if it were the case it may be that the Crown could establish an intent to defraud under Welham’s case,” said his Honour. The evidence from the officer of the finance company was that the company would not have advanced the money if it had known that Christopher Cliff Morris was not the true owner or purchaser of the car.

There was no evidence from the Crown that that was not the case, and on that basis he was satisfied that there was no evidence of an intent to defraud and both counts had to fail. He was satisfied that there was not a deception, or at least it was not established that there was a deception in presenting the hire-pur-chase agreement which was in fact a valid hire-purchase agreement. “It may well be that the finance company was entitled to rely on a sale of $30,000 as being a genuine sale, but if that were a material matter I would have expected more evidence of it and I would have expected some to show that $30,000 bore no relationship to the true value of the car,” said his Honour.

There was no suggestion of any other crime that should be presented on the indictment and although it might well be that Hague had committed offences under the Motor Vehicle Dealers Act and other matters, he was satisfied that he should direct under section 347 of the Crimes Act that no indictment be presented and Hague was discharged. Hague was not entirely free from blame for the position in which he was placed and he did not think that he was entitled to indemnity of his full costs and he would be allowed $l5O, his Honour said.