Schokker v The Queen [2001] WASCA 84

Schokker v The Queen [2001] WASCA 84 - WASCA 2001 case summary — Zoe

[73]

16 A 1981 Ford Fairlane with country number plates was acquired at auction in the name of Mr Schokker on 5 May 1994. It was the Crown case that the odometer reading was 292,422 kilometres at the time of acquisition. The Fairlane was then advertised for sale. The purchaser went to the applicants' home with her husband and son and met Mr and Mrs Schokker on 19 May 1994. Mrs Schokker did most of the talking. The purchaser was told a number of things. The applicants needed to sell the car to buy a smaller one. Mrs Schokker had hurt her back and found it difficult to drive the Fairlane because it was big. They had recently moved to the city and only needed a smaller car for getting around town. Mrs Schokker also said that the Fairlane was a good comfortable car, "Its been a good family car", and "It's a good car for country use". It was the evidence of the purchaser that the effect of what was said to her was to lead her to believe that the applicants had had the car for a number of years. This, in her evidence, was a determining factor in her decision whether or not she bought the car. Had she known that the applicants had owned the car for only 14-15 days she would not have bought it. In respect of count 1 while it was the Crown case that the odometer had been wound back it was not relied on as a material inducement because of the evidence of the purchaser as to her reasons for buying the car. It was the case for Mrs Schokker, who did not give evidence at the trial, that nothing she said to the purchaser induced the purchaser to buy the vehicle as she relied on her husband and son. Further, that nothing said by Mrs Schokker was actually false. It was the case for Mr Schokker that he made no representations to the purchaser himself, the evidence did not establish that he heard anything said by his wife, and the evidence did not establish that he had any knowledge of a false odometer reading. It was his evidence that while the vehicle had been registered in his name that was a mistake and it had in truth been purchased by his wife and he had not signed any papers. It was also Mr Schokker's case that the purchaser relied on her husband and son not on anything said. It was also the case advanced for both applicants at trial that if the purchaser had gained any false impression as to the length of time the applicants had had the Fairlane, this was due to a comment made by Mrs Schokker after the sale had been concluded, not to anything said during the negotiations.

[77]

20 It was the evidence that a 1983 Nissan Pulsar was purchased in the name of Mrs Schokker at auction on 21 July 1994. It was the Crown case that at that time the odometer reading was 227,929 kilometres. The purchaser went to the home of the applicants in response to a newspaper advertisement on 1 August 1994. He spoke to Mrs Schokker who made a telephone call and Mr Schokker arrived. When the purchaser asked if there was anything wrong with the car Mrs Schokker replied "No, we bought it from a young girl a year or so ago". The purchaser noted the odometer read between 128,000 and 129,000 kilometres. After agreeing to buy the car he paid a deposit that day and the balance the following day to Mr Schokker. It was the case for Mrs Schokker that the evidence of the purchaser was unreliable and insufficient to establish either the alleged representation or reliance and there was no evidence that she knew of a false odometer reading. It was the case for Mr Schokker and his evidence that he had no idea of the odometer reading when the car was purchased or that the odometer had been rewound. It was his wife who had sold the car. He made no oral representation and that there was no evidence of his knowledge that anything false was said by his wife and that the evidence of the purchaser was unreliable and inadequate for the reasons relied on by Mrs Schokker. In this last respect there was also evidence adduced of a statement made by the purchaser to a private enquiry agent retained by the applicants which differed in some material respects from the purchaser's evidence at trial. But the statement was written in English by the enquiry agent and the purchaser had only recently arrived in Australia and had little knowledge of English. Thus there was a clear issue for the jury's consideration as to the credibility and reliability of the purchaser's evidence but the issue was well explored during the evidence and in submissions so there is no reason to think that the jury were not able adequately to resolve this issue..

[81]

24 Another Sigma sedan was purchased at auction on 12 January 1995 at which time it was the prosecution evidence that the odometer read 196,925 kilometres. At the time of acquisition Mr Schokker directed the car auction yard that the vehicle be transferred to a Dion Shillito, a relative of the applicants. The purchasers telephoned in response to a newspaper advertisement on 15 January 1995 and spoke to a male and when asked he was told that the car had done 137,000 kilometres which he wrote down on the advertisement. The purchasers then went to the applicant's home where Mr Schokker said that it was Mrs Schokker's car and she used it mostly for shopping. It was the purchaser's evidence that Mrs Schokker said the car had been in the family for a while. The purchaser confirmed the odometer reading. It was the case for Mrs Schokker that she made no false representation and there was no evidence that she knew of any representation made by her husband or that she knew of the odometer reading at the time of acquisition or of any change to the odometer reading. It was Mr Schokker's evidence that he had purchased the car in the name of his son-in-law but the son-in-law did not like the car so it had been resold. It was his evidence that he had no knowledge of the odometer reading at the time the car was acquired. He accepted that he may have told the purchaser that the odometer read 137,000 kilometres and he did not dispute that that was the reading at the time the vehicle was resold. It was his evidence that he had no knowledge of the odometer having been rewound. It was the case for Mr Schokker that the jury should not accept that anything said as to Mrs Schokker's use of the vehicle was material to the decision of the purchaser to buy the vehicle or that anything said had been shown to be false as the vehicle had been in the family for a while, ie 3 days, and had been used by his wife to go to the shops and his wife had been the real purchaser. It was also the case for Mr Schokker that the jury should not accept that he had any knowledge of the rewinding of the odometer and further the difference between the two readings was relatively small and the jury should not accept that that difference would have been material to the purchaser's decision to buy the vehicle. It was Mr Schokker's evidence that the purchaser had expressed some doubt about the odometer reading which was another reason for doubt that reliance was placed on the odometer reading.

[84]

27 At the hearing the argument primarily advanced is that the evidence led at the trial was not sufficient to establish that the odometers were altered after the vehicles were acquired, whether acquired by one or other or both of the applicants, and before the vehicles were resold. In this respect the case concerning count 7 differed from the other counts. The vehicle, the subject of count 7, had been acquired from a car salesyard whereas the other vehicles were bought at car auctions. With respect to count 7 there was evidence from the salesman at the car yard that he checked the odometer reading on the day of the sale and recorded it from the odometer reading. That reading was recorded on the purchase contract which was completed on a proforma and then signed by Mrs Schokker. Mr Schokker was present. There was also evidence from the person who purchased the vehicle when it was resold by Mrs Schokker. The purchaser was a car dealer and it was his evidence that he checked the odometer after test driving the vehicle and recorded the reading on a statutory form which was then signed by Mrs Schokker. As has been noted earlier the reading recorded at the time of acquisition of the vehicle by Mrs Schokker was 295,390 kilometres and that recorded at the time of resale by Mrs Schokker was 156,017 kilometres. At trial this evidence was disputed on oath by Mr Schokker and in particular it was his evidence that on the resale Mrs Schokker had signed a blank statutory notice. The evidence of both of these witnesses was extensively tested in cross-examination at trial. Nevertheless, there was clearly direct evidence on which the jury could have been satisfied that the odometer of the vehicle, the subject of count 7, was rewound after the vehicle was acquired by Mrs Schokker and before it was resold. It was a matter within the province of the jury to determine what weight if any they should attach to this evidence and to the various matters raised by way of defence about it and to the evidence of Mr Schokker.

[87]

30 At trial witnesses were called from each of the car auction establishments concerned. In respect of every vehicle there was direct evidence of the odometer reading recorded on the statutory notice being taken from the actual odometer reading of the vehicle. The evidence of the witnesses as to the recording of the readings of the odometers of the vehicles in the car auction establishments was tested extensively at trial as to honesty and reliability and as to the system followed. The evidence indicates that at least some of the vehicles had been put up for auction at more than one sale before the vehicle was acquired by one or other or both of the applicants. That might occur, of course, because a reserve price had not been reached or because there was no bid for the vehicle at an auction. While there was evidence of the odometer reading being taken from the car and recorded on the statutory notice and that this occurred on the day of the sale, in those cases where the auction establishment's records appear to indicate that the vehicle may have been put up at more than one auction, the statutory notice was not always dated on the date of the eventual purchase by one or other or both of the applicants. That is to say that the evidence is capable of supporting the view that the statutory notice was filled in on the day of an earlier auction. The evidence does not indicate, however, that in such circumstances the vehicles were moved in between auction sales. Further, the evidence may well have been accepted by the jury as establishing that the odometer reading was checked on each sale date whether or not a fresh statutory notice form was made out. While the auction establishment's records revealed in the case of some of the vehicles that more than one lot number had been allocated to the vehicle, ie indicating it may have been offered at more than one auction sale, and in the case of the vehicle the subject of count 4 a reserved price had been noted but crossed out and the eventual sale was at a figure less than the noted reserve, in respect of the other vehicles there was nothing in the evidence to indicate even the possibility that they had been offered at more than one auction.

[89]

32 On the foundation of this evidence of Mr Swaine and the fact that some of the vehicles appeared to have been offered at more than one auction before being acquired by one or other or both of the applicants, it is submitted for the applicants that the evidence establishes or gives rise to the reasonable possibility that individual staff members of the auction establishments purchased vehicles in their own right and thereby had both the motive and the opportunity to rewind the odometers so that the vehicles, when put up at for sale at a later auction, might fetch a higher price to the financial advantage of the staff member. There are a number of problems with this. The evidence simply does not go as far as the submission would take it. While the evidence could support the possibility of an internal or dummy sale, there is no evidence at all that it was a genuine sale to the staff member, or that the staff member actually paid for the vehicle, or that the vehicle was actually transferred to or became the property of the staff member, or that a staff member would be able to remove the vehicle from the auction premises or by some other means have an opportunity to rewind the odometer. The statutory and other records of the auction establishments do not record any such sale, or payment, or transfer to a staff member, and despite extensive cross-examination of Mr Swaine and other witnesses from the auction establishments their evidence provides no foundation for there having been a genuine sale to a staff member or for a staff member having any opportunity, or personal interest, to rewind an odometer. Further, the "possibility" relied on has the rather glaring difficulty that it involves the vehicle then being offered for sale at auction with a lower odometer reading than that shown on the statutory notice displayed on the vehicle at the time of sale as being the odometer reading when the vehicle was acquired by the auction establishment from the previous owner, and of the vehicle being sold at auction with an odometer reading lower than the other reading shown on the statutory notice as the odometer reading at the time of the sale by auction. Given that this statutory notice is to be expected to be sighted and signed by the purchaser at the ultimate auction sale and a copy retained by that purchaser, in my view, it beggars belief that this did occur or could have occurred on any one of the eight separate occasions with which this trial was concerned. In my view it was properly open to the jury not to entertain a reasonable doubt in respect of any one of the eight relevant occasions that the odometer may have been rewound before the vehicle was acquired at auction. The assertions or unsupported contentions of Mr Schokker at trial take the matter no further, nor do the many further assertions or unsupported contentions which were advanced in the course of the submissions.

[102]

45 With respect to count 1 it is particularly submitted that any representations made had not been shown to be false, nor that they were relied on by the purchaser. There was a factual issue whether the purchaser's belief that the applicants had the vehicle for a quite a time was in truth founded in a comment made after the purchase had been concluded, in which event of course it could not have been an inducement for the purposes of the offence. That factual issue was fully canvassed in evidence and submissions at the trial and the matter was clearly put to the jury in his charge by the trial Judge. It is further submitted that apart from this comment made after the sale there was no other evidence capable of being accepted by the jury as constituting a representation as to the length of ownership. In my view that is not the case. It was the evidence of the purchaser, of course, that she was never told specifically how long the applicants had had the car. That is not the end of the issue however. The vehicle had country registration plates. The purchaser spoke to both applicants when she went to inspect the vehicle. It was the purchaser's evidence that when she asked why they were selling the vehicle she was told by Mrs Schokker they had recently moved up from the country and it wouldn't fit in the garage. It was also said that the applicants had two sons who were growing up, and that Mrs Schokker had hurt her back and found it difficult to drive the Fairlane because it was a big car. Thus, Mrs Schokker wanted a smaller car for getting around town and they needed to sell the Fairlane to buy a smaller car. There was also evidence that Mrs Schokker said to the purchaser at different times as the Fairlane was being inspected to the effect that "It has been a good family car", "It was a good comfortable car", and "It's a good car for country use". A tilt in the driver's seat was also explained as having been caused by Mr Schokker getting in and out, he being a big man. The evidence disclosed that the Fairlane had been acquired only 14 or 15 days earlier in the name of Mr Schokker, the applicants had not moved from the country, and that while Mrs Schokker had been injured in a road accident, this was in 1968. In his evidence, Mr Schokker did assert that Fairlanes had a notoriously weak seat frame, apparently to support the possibility that his getting in and out of the car in the 14 or 15 days may have bent the frame and caused the seat back to tilt, although he did not say this had actually occurred. It was obviously a matter for the jury to determine whether they were satisfied that the things set out in the evidence of the purchaser had been said, but if the jury was satisfied of this it appears to me to have been well open to the jury to conclude from the general effect of what was said that the vehicle had been falsely represented to the purchaser as having been owned by the applicant as their family car for quite some time. This view is open in particular having regard to the comments that it had been a good family car, that it was being sold because the applicants had recently moved from the country and it wouldn't fit in the garage, and that it was being sold because Mrs Schokker needed to sell it because she wanted a smaller car for getting around town. There was explicit evidence from the purchaser that the period of ownership was a factor in her decision to buy and she would not have purchased had she known the vehicle had been owned by the applicants for only 15 days. This matter of reliance was also fully explored in cross-examination and in particular whether the purchaser had relied on her husband and son who were with her rather than on anything said by Mrs Schokker. In my view, it was open to the jury on the evidence to be satisfied as to the element of reliance or inducement despite the various matters raised at trial and now again in submission. It seems to me that these issues raised in respect of count 1 were entirely matters for factual determination by the jury according to their assessment of the witnesses and the evidence.

[103]

46 With respect to count 2 it is submitted the purchaser relied on her father's advice not on any representations. This is true in part according to the evidence, but the submission overlooks that it was the prosecution case, which is well supported by the evidence, that father and daughter looked over the car together and that while the oral representations relied on were made to the father by Mr Schokker their effect was to persuade the father who accordingly advised the daughter to buy and she acted substantially on his advice. It is further submitted that the statements which the evidence indicates were made by Mr Schokker to the father that he'd had the car a fair while, his wife mainly drove it, and (in response to a question about the relatively low kilometres) the statement that he hadn't driven it much and it was mainly driven just to and from work by his wife, were not shown to be false. With respect to falsity the submission seeks to limit the meaning and affect of what was said extremely literally and narrowly and to ignore the natural import of what was said. There was also a statement by Mrs Schokker to the daughter that they had the car since new. The evidence is well capable of establishing, however, that in fact the vehicle had been purchased in Mrs Schokker's name only eight days earlier and in that time the odometer had been rewound nearly 40,000 kilometres. Even though Mr Schokker in his evidence denied saying some of these things and asserted that different things had been said it was, in my view, properly open to the jury to accept that these statements were made and that they their intended effect constituted false representations as to the length of time the vehicle had been owned by Mrs Schokker and to support the false odometer reading. The issue of inducement while not necessarily clear cut appears to me to have been one properly for the jury it being open, in my assessment of the record, to the jury to be satisfied that it was substantially by virtue of the representations made by Mr Schokker to the father that the daughter decided to buy, and that this was the foreseen and intended purpose of Mr Schokker's representations.

[110]

53 With respect to count 9 there was evidence which the jury might properly have accepted as establishing that the vehicle was resold three days after it was purchased by the applicants in the name of a relative, and in that three days the odometer had been rewound from 196,925 kilometres to some 137,000. It was accepted by Mr Schokker in his evidence that he had told the purchaser's father on the phone that the odometer reading was some 137,000 kilometres and that he may have said the car had been in the family for "a while". There was evidence from the purchaser's father that when asked Mr Schokker said the car had been in the family about 12 months and that it was his wife's car and they had moved recently so he could walk to work and they didn't need the car. The daughter also recalled Mr Schokker saying that his wife had used the car mostly for shopping and things like that. The vehicle was inspected by the father and daughter together and the vehicle was purchased by the daughter. It was her evidence that she was looking for a car with less than a 150,000 kilometres on the odometer and that the odometer reading had a bearing on her decision although she could not say she wouldn't have bought the car had she known the true reading was 196,925 kilometres. It was also her evidence that it would have affected her decision to buy if she'd known the applicants had only owned the vehicle for three days as she'd have thought they were selling for a profit or that it wasn't a good vehicle. Her evidence was clear that she would not have bought the vehicle had she known the true kilometres and that the applicants had only owned it for three days. The applicants' point to some differences between her evidence and that of her father as to what each saw to be material in her decision to buy, although in this regard the father also said that he thought they'd have walked away had they known the true odometer reading and that the Schokkers had had the car for three days. It is submitted that the evidence is too equivocal as to reliance or inducement. While the evidence gave rise a number of factual issues to be weighed by the jury it was, in my view, open to the jury to accept from this evidence that the daughter would not have purchased the vehicle had it not been for the representations as to the odometer reading and the time the vehicle had been owned.

[125]

"In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (NSW) which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarize 'the evidence given in the trial' if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence."

[138]

"The justification, indeed the alleged necessity, for separate trials lies in the fact that in three records of interview with Webb, which could be expected to be and were adduced in evidence by the prosecution, Webb made assertions that Hay had engaged in a violent and sadistic attack on the deceased. And, it was said, although the trial judge warned the jury that this evidence was not admissible against Hay, such a direction could not cure the overwhelming prejudice inevitably caused to Hay,

King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.' What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Reg v Collie. I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.

In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary." Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred."

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Judgment (179 paragraphs)

Schokker v The Queen [2001] WASCA 84 (19 March 2001)

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Legislation Cited (1)

Cases Cited (41)