Baig v The the Queen - [2022] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA152/2021
[2022] NZCA 36

BETWEEN	MIRZA SAADAT BAIG Appellant
AND	THE QUEEN Respondent

Hearing:	17 February 2022
Court:	Kós P, Peters and Palmer JJ
Counsel:	J M Grainger for Appellant M R L Davie for Respondent
Judgment:	4 March 2022 at 2.30 pm

JUDGMENT OF THE COURT

AThe appellant’s application to adduce fresh evidence is granted.
BThe respondent’s application to adduce fresh evidence is granted.
CThe appeal against conviction is dismissed.
D The appeal against sentence is allowed.
E The reparation order is quashed and remitted to the District Court for redetermination.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Two car dealers share a lot. A jury found that one, the appellant, fraudulently used a vehicle belonging to the other to obtain $20,308 from a finance company, pretending that he had sold it to a third party. In fact, the vehicle simply remained on the lot. Eventually the finance company repossessed and sold it. For $4,500. Both the original owner and the finance company were out of pocket.
The appellant was convicted of forgery and dishonestly using a document.[1] He was sentenced to four and a half months’ home detention with six months’ post‑detention conditions.[2] The Judge assessed the value of the vehicle as $17,995 and made a reparation order in that amount.[3]
[1]Crimes Act 1961, ss 228(1) and 256(1).
[2]R v Baig [2021] NZDC 3670 at [30]–[31].
[3]At [35].
The appellant says fresh evidence casts doubt on the credibility of the owner, such that the conviction should be set aside. He also says the Judge was wrong to order reparation in that amount.

Background

The Crown case, found proved beyond a reasonable doubt by the jury, was as follows.
The appellant was the director of Milestone Motors Ltd, an Otahuhu motor vehicle dealership. He entered an arrangement with a Mr Bandesha, who was in the same line of business, to share the appellant’s sales yard. Mr Bandesha traded as Milestone Motorz Ltd — with a “z”. By March 2017, Mr Bandesha had approximately 30 cars at the lot, and more coming.
Mr Bandesha’s company imported the vehicle in question, a Toyota Estima minivan, from Japan. AutoHub, a shipping firm, issued Milestone Motorz with an invoice for a total of $2,104.05 on 8 February 2017. This was a key document at the trial. Under the heading, “CUSTOMS CHARGES (Exchange Rate 79.24)”, the invoice states “FOB ¥350,000”. The Customs GST component of the invoice was $805.05.
The vehicle was taken to the lot where, by and large, it remained until it was repossessed in November 2017.
On 11 May 2017, the appellant and a Mr Harnil Dave submitted a loan application to Finance Now Ltd seeking $17,790 to fund purchase of the vehicle. Mr Dave was an employee of first Mr Baig and then Mr Bandesha. The application was presented jointly by the appellant’s company (as vendor) and a Mr Syed (as purchaser, for…

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 Baig v The the Queen

Details

AGLC: Baig v The the Queen [2022] NZCA 36
Case: [2022] NZCA 36
Decision Date: 4 March 2022 at 2.30 pm

CaseChat Overview and Summary

Mirza Saadat Baig, the appellant, appealed against his conviction and sentence for forgery and dishonestly using a document. The conviction stemmed from his fraudulent use of a vehicle belonging to another car dealer, Mr Bandesha, to obtain $20,308 from a finance company. The vehicle remained on the shared lot and was eventually repossessed and sold for $4,500. Both the original owner and the finance company were out of pocket. Baig was convicted of forgery and dishonestly using a document and was sentenced to four and a half months’ home detention with six months’ post-detention conditions. The Judge ordered reparation of $17,995 to be paid to Mr Bandesha. The appeal raised two legal issues: whether the fresh evidence cast doubt on the credibility of the owner, and whether the Judge was wrong to order reparation in that amount.

The Court held that the fresh evidence did not demonstrate a miscarriage of justice, and the appeal against conviction was dismissed. The Court found that Mr Bandesha's credibility was already subject to sustained attack at trial, and the jury was entitled to accept his evidence. The new evidence did not demonstrate a fraud on Mr Bandesha's part, and the Court declined to speculate or draw an adverse inference in the absence of an evidential foundation. Regarding the reparation order, the Court found that the further evidence from the Crown required the order to be quashed and remitted to the District Court for redetermination. The Court held that the reparation order should be based on the lost asset's worth, not the purchase price paid by Mr Bandesha. The evidence raised a problem with the vehicle being worth the $17,995 assessed by the sentencing Judge, and the reparation order needed to be redetermined.

The appeal against the conviction was dismissed, and the appeal against the sentence was allowed. The reparation order was quashed and remitted to the District Court for redetermination.

Orders