Asgedom v R

Case [2016] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND
CA451/2015
[2016] NZCA 334
BETWEEN

DEMISSIE TEFERA ASGEDOM
Appellant

AND

THE QUEEN
Respondent

CA533/2015

BETWEEN

NEBIYOU TEFERA DEMISSIE
Appellant

AND

THE QUEEN
Respondent
Hearing:

1 June 2016

Court:

Randerson, Woodhouse and Wylie JJ

Counsel:

R E Lawn for Appellant Asgedom
J R F Anderson for Appellant Demissie
K S Grau for Respondent

Judgment:

18 July 2016 at 9.30 am

JUDGMENT OF THE COURT

AThe appellant Mr Demissie is granted an extension of time to appeal.

BThe appeals against conviction by both appellants are dismissed.

C    The appellant Mr Demissie’s appeal against sentence is dismissed. 

D    To the extent the sentences imposed may not have been completed, this must now occur.  The respondent may revert to this Court if any further directions on this are required. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction
Background facts
The grounds of appeal
The search warrants

The content of the application for the warrants
Search warrants – principles
Search warrants – discussion

The admissibility of the Excel spreadsheet

Background
Judge Harvey’s rulings
The evidence at trial relevant to the admissibility of the spreadsheet
Excel spreadsheet – discussion

Was Judge Harvey’s verdict unreasonable?

Counsels’ submissions
The evidence adduced by the Crown at trial
The appellants’ evidence at trial
Mr Asgedom
Mr Demissie
Judge Harvey’s findings
Unreasonable verdict – discussion

Remaining matters

Refusal to discharge the appellants pre-trial
The ruling for a judge-alone trial
Refusal of an application for stay of proceedings
The form of the indictment

Mr Demissie’s sentence appeal
Result

[1]
[7]
[13]
[15]
[17]
[27]
[31]
[38]
[38]
[45]

[58]
[66]
[81]
[86]
[88]
[89]
[90]
[95]
[101]
[108]
[116]
[117]
[118]
[123]
[128]
[132]
[140]

Introduction

  1. After a judge-alone trial before Judge David Harvey the appellants were convicted on a number of dishonesty offences relating to a scheme to scalp tickets for the Rugby World Cup (RWC) tournament which commenced on 9 September 2011.[1]

    [1]R v Demissie [2015] NZDC 8912. 

  2. There were some 30 counts in the indictment brought jointly in each case against the appellants who are brothers.  Where the relevant tickets were recovered, the appellants were charged with obtaining a document with the intention of obtaining a pecuniary advantage, contrary to s 228 of the Crimes Act 1961.  In those cases where the RWC tickets were not recovered (or in one case were intercepted before they reached their destination) the appellants were charged with attempting to commit an offence under s 228.

  3. The appellant Mr Demissie was found guilty of seven counts under s 228 and nine counts of attempting to commit an offence under that section.  Mr Asgedom was found guilty of seven counts under s 228 and eight counts of attempting to commit an offence under that section.  They were found not guilty of the remaining charges or, in some cases, were discharged during the trial. 

  4. The appellants were sentenced on 6 August 2015 to 12 months home detention and 200 hours…

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Details
AGLC
Asgedom v The Queen [2016] NZCA 334
Case
[2016] NZCA 334
Decision Date

CaseChat Overview and Summary

The case of Asgedom v R was heard by Judge Harvey, involving a dispute concerning the admissibility of evidence, specifically an Excel spreadsheet created by Detective Traviss. The spreadsheet, which contained data from Ticketek, credit card companies, and police investigations, was tendered under s 133 of the Evidence Act 2006. The primary legal issues before the court were the admissibility of the spreadsheet as evidence and whether there was a basis for a stay of proceedings due to lack of disclosure. The court had to consider whether the presumption of reliability for computer-generated evidence applied and if it could be rebutted by the defence.

Judge Harvey addressed the legal issues by examining the presumption of reliability for computer-generated evidence under s 137 of the Evidence Act, which presumes that a machine, device, or technical process ordinarily operates as asserted unless proven otherwise. The judge concluded that once the Crown established how computerized transactions ordinarily work through the Ticketek website using credit cards, the presumption of reliability arose, and the onus shifted to the defence to provide evidence to rebut this presumption. The court noted that this would usually require expert evidence. The judge found that there was no basis for a stay of proceedings due to lack of disclosure or any other ground.

The reasoning of the court led to the conclusion that the spreadsheet was admissible as it complied with the requirements of s 133 of the Evidence Act, which allows for the summarisation and collation of large volumes of evidence into a manageable form. The spreadsheet made it possible to observe relationships between credit card numbers and transactions, and filter information to isolate details of various transactions. As a result, Judge Harvey admitted the spreadsheet as evidence and ruled that there was no basis for a stay of proceedings.

The final orders of the court were that the spreadsheet evidence was admissible and there was no basis for a stay of proceedings on any ground.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Judge Harvey also relied on Master Kennedy-Grant’s observation in Marac Financial Services Ltd v Stewart that the use of computers for the recording of transactions on accounts was sufficiently well-established for there to be a presumption of fact that computers were accurate.[20] The Judge also noted the presumption in s 137(1) of the Evidence Act:137 Evidence produced by machine, device, or technical process(1)If a party offers evidence that was produced wholly or partly by a machine, device, or technical process (for example, scanning) and the machine, device, or technical process is of a kind that ordinarily does what a party asserts it to have done, it is presumed that on a particular occasion the machine, device, or technical process did what that party asserts it to have done, in the absence of evidence to the contrary.…[20]Marac Financial Services Ltd v Stewart [1993] 1 NZLR 86. Judge Harvey accepted it was necessary to establish how a machine, device or technical process ordinarily operated[21] and concluded:[22]Thus as long as the Crown is able to prove generally how computerised transactions ordinarily work via the Ticketek website utilizing a credit card the presumption of reliability will arise and the onus then falls upon the defence to bring evidence to establish the contrary – that is that on the occasion presumption of reliability can be rebutted and usually this would have to be done by means of expert evidence.[21]Citing Heath J’s judgment in Scott v Otago Regional Council HC Dunedin CRI 2008-412-17, 3 November 2008. [22]Above n 1, at [83]. There was no appeal from Judge Harvey’s determination that the spreadsheet evidence was admissible or his conclusion there was no basis for a stay of proceedings for lack of disclosure or on any other ground. At trial, the Crown called Mr Bainbridge, Mr Cattermole (the fraud operations manager at the Westpac Bank) and Mr Cameron (the investigations manager based in Australia for American Express). In his reasons for verdict, Judge Harvey described the contents of the spreadsheet in these terms:[23][82] The main parts of Detective Traviss’ evidence related to the Excel spreadsheet. He prepared this document. It was created with data that had been sourced from Ticketek, the credit card companies and from the police investigations. It was tendered pursuant to s 133 of the Evidence Act 2006 in that it summarised and collated a large volume of documentary evidence into a manageable form which, utilising the filtering utilities present in Excel, made it possible to isolate sections of data for examination. It was possible, for example, to observe the relationships between credit card numbers and the transactions to which they were employed.[83] The spreadsheet contained all of the relevant data under a tab that was labelled Combined Data. It was possible to filter information under the Combined Data tab to display information in the name of those in whose names tickets were purchased. This information was duplicated in individual tabs under the names of those in whose names tickets were purchased. Each tab related to a name which also appears in the indictment. The spreadsheet made isolating details of the various transactions easy and an understanding of those transactions clear. …[23]Above n 1.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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