Adamson v The Queen - [2017] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

CA641/2016
[2017] NZCA 175

BETWEEN	SERENA JAYNE ADAMSON Appellant
AND	THE QUEEN Respondent

Hearing:	13 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	A J McKenzie for Appellant A Ewing for Respondent
Judgment:	11 May 2017 at 2.15 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Woodhouse J)

The appellant, Serena Adamson, was charged with using a BNZ loan document dishonestly and without a claim of right with intent to obtain a pecuniary advantage. Following a trial in the District Court at Christchurch, before Judge Saunders and a jury, she was found guilty. Ms Adamson appeals against her conviction on the ground that there was a miscarriage of justice arising from a misdirection of the Judge to the jury on what the Crown had to prove to establish that she had acted without a claim of right.

Appeal out of time

There was a short delay in filing the notice of appeal, which has been adequately explained. The Crown does not oppose the application for an extension of time to appeal. There is an order accordingly.

Background

In 2012 Mr Alan Gawler, a man with impaired hearing then living in Christchurch, was planning to move to Australia. He planned to let his Christchurch home and asked Ms Adamson, who is his niece and was working as a real estate agent, to assist him. Mr Gawler gave Ms Adamson access to, and authority to operate, his BNZ bank account.
Mr Gawler wanted to obtain a loan from BNZ to buy a car once he arrived in Australia and to meet some other expenses before he left New Zealand. He asked Ms Adamson to help him with this because of the difficulties he had in dealing directly with bank staff because of his impaired hearing. Ms Adamson told Mr Gawler that BNZ had declined to make a loan. After this, Mr Gawler said that he had not authorised Ms Adamson to apply for a loan or to use any loan funds.
BNZ had in fact made a loan offer of $15,000 in response to an application for a loan for that sum. Mr Gawler’s bank account was credited with the loan sum of $15,000 on 19 October 2012. On that date Ms Adamson transferred $14,600 from Mr Gawler’s account to her own account. $4,600 of that was then transferred to another one of Ms Adamson’s accounts. Ms Adamson’s bank statements for the following weeks record regular withdrawals of hundreds of dollars at local taverns, hotels, and at the Christchurch Casino. Mr Gawler said he had no knowledge of any of this. He said he did not find out about the loan advance until some months after he had moved to Australia in December 2012.
Two documents relating to the loan were put in evidence through a BNZ employee. The first is a loan application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adamson v The Queen

Details

AGLC: Adamson v The Queen [2017] NZCA 175
Case: [2017] NZCA 175
Decision Date: 11 May 2017 at 2.15 pm

CaseChat Overview and Summary

Serena Adamson was found guilty by a jury in the District Court of using a BNZ loan document dishonestly and without a claim of right with intent to obtain a pecuniary advantage. The court was required to determine whether the Judge misdirected the jury on what the Crown had to prove to establish that Ms Adamson had acted without a claim of right. The Court of Appeal found that there was a misdirection, but concluded that the misdirection did not result in a miscarriage of justice.

The Court of Appeal found that the misdirection resulted in the jury being directed to consider the honesty of Ms Adamson's belief at the time she used the loan document, rather than at the time she used the document. However, the Court of Appeal found that the misdirection did not result in a miscarriage of justice because the jury had to have concluded that Ms Adamson did act dishonestly when she used the loan offer by accepting it and submitting it to BNZ. The evidence called by the Crown to prove that Ms Adamson acted dishonestly would also go to proving that she had no claim of right. The defence case rested, in the end, on the possibility that Ms Adamson had acted with Mr Gawler's permission, which the jury rejected.

The Court of Appeal concluded that the misdirection did not result in a miscarriage of justice, and dismissed the appeal. However, the Court of Appeal granted the application for an extension of time to appeal.

The final orders of the Court of Appeal are that the application for an extension of time to appeal is granted, but the appeal is dismissed.

Orders