Banbrook v R - [2013] NZCA 525

IN THE COURT OF APPEAL OF NEW ZEALAND

CA147/2013
[2013] NZCA 525

BETWEEN	ANTHONY DAVID BANBROOK Appellant
AND	THE QUEEN Respondent

Hearing:	21 October 2013
Court:	Miller, Venning and Andrews JJ
Counsel:	Appellant in Person J M Jelas and K S Graham for Respondent
Judgment:	30 October 2013 at 4.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed. The conviction and sentence stand.

BThe standard conditions for home detention under s 80C(2) of the Sentencing Act 2002 are to apply.
CThe sentence of home detention is to be served at the address identified in the report prepared for the District Court by the Department of Corrections in August 2012. Mr Banbrook must be at that address on 4 November 2013 at 2 pm and remain there pending the arrival of a probation officer and an officer of the company responsible for connecting the electronic monitoring system.
DThe time for Mr Banbrook to pay the reparation of $75,000 is extended to 15 November 2013.
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REASONS OF THE COURT

(Given by Venning J)

Mr Banbrook pleaded guilty to one charge of making an untrue statement in a registered prospectus.[1] On 12 March 2013 Collins J sentenced him to eight and a half months’ home detention and ordered him to pay reparation of $75,000 by 12 April 2013.[2] Immediately following sentence Mr Banbrook lodged this appeal seeking to set aside the conviction.

The background to the entry of the guilty plea and sentence

[1]Securities Act 1978, s 58(3).

[2]R v Banbrook [2013] NZHC 462.

Mr Banbrook, together with Mr Ludlow and Ms Braithwaite (Mr Ludlow’s partner) were all directors of National Finance 2000 Ltd (NFL). Mr Ludlow was the sole shareholder and controlled the company. NFL failed and was placed in receivership and liquidation. Following an investigation Mr Ludlow was charged and convicted of a number of offences arising from his operation of the company, including one count of false accounting, six counts of theft by a person in a special relationship, seven counts under the Financial Reporting Act 1993 and one count of distributing a registered prospectus that included an untrue statement.
Mr Banbrook and Ms Braithwaite were also charged with offences under the Financial Reporting Act and the Securities Act. The Financial Reporting Act charges were withdrawn. Ultimately Mr Banbrook faced one charge under s 58(3) of the Securities Act.
Mr Banbrook applied for a stay of prosecution of that charge on the grounds:
(a)of undue delay in the prosecution contrary to s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBOR); and
(b)that he could not have a fair trial, contrary to s 25(a) of the NZBOR.
In a judgment delivered on 12 June 2012 Ellis J declined Mr Banbrook’s application for stay.[3]
[3]R v Banbrook [2012] NZHC 1318 [stay decision].
Mr Banbrook then pleaded guilty to the charge under the Securities Act on 22 June 2012. At the time Mr Banbrook was represented by counsel Mr Burns. In recording the guilty…

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 Banbrook v R

Details

AGLC: Banbrook v R [2013] NZCA 525
Case: [2013] NZCA 525
Decision Date: 30 October 2013 at 4.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Anthony David Banbrook against his conviction and sentence for making an untrue statement in a registered prospectus. Banbrook had pleaded guilty to the charge but sought to set aside his plea and conviction, arguing that his plea was induced by an erroneous legal ruling by the High Court which declined his application for a stay of prosecution. The primary legal issue before the Court was whether an erroneous legal ruling by the High Court could justify setting aside a guilty plea.

The Court of Appeal found that an erroneous legal ruling did not necessarily justify setting aside a guilty plea. The Court noted that the ruling by the High Court did not render Banbrook incapable of defending himself and that he still had a legal avenue to argue his defence. The Court further found that Banbrook's concessions in the final summary of facts signed off by him undermined his defence and that he had effectively conceded that he did not have reasonable grounds for his belief that the statements in the prospectus were true. The Court concluded that there was no miscarriage of justice in holding Banbrook to his guilty plea.

The appeal was dismissed, and the conviction and sentence stood. The Court ordered that the sentence of home detention was to be served at the address identified in the report prepared for the District Court by the Department of Corrections in August 2012. The time for Banbrook to pay the reparation of $75,000 was extended to 15 November 2013.

Orders