BETTY LEUINA SIO AND THE KING
[2024] NZCA 560
•5 November 2024 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA483/2024 |
| BETWEEN | BETTY LEUINA SIO |
| AND | THE KING |
| Court: | Palmer, Grice and Gault JJ |
Counsel: | N P Chisnall KC for Applicant |
Judgment: | 5 November 2024 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
On 29 March 2023, Ms Betty Sio was found guilty, by Judge Y Yelavich in the District Court at Manukau, of two charges of dishonestly using a document.[1] On 16 August 2023, the Judge declined Ms Sio’s application to discharge her without conviction, and instead convicted her and imposed a fine of $3000.[2] On 1 July 2024, in the High Court at Auckland, Brewer J dismissed Ms Sio’s appeal against conviction.[3] Ms Sio applies for leave to bring a second appeal against conviction.
What happened?
[1]Serious Fraud Office v Sio [2022] NZDC 774 [District Court verdicts judgment] at [184].
[2]R v Sio [2023] NZDC 17631 [District Court sentencing judgment] at [56] and [64].
[3]Sio v R [2024] NZHC 1756 [High Court judgment] at [81]–[82].
Ms Sio was the Chief Executive Officer of a charitable organisation, the Pacific Island Safety & Prevention Project Incorporated (Project). Her friend Ms Tapualii Uitime was the Operations Manager. Ms Uitime pleaded guilty to representative dishonesty charges, including in relation to forging four invoices from fictitious suppliers, and dishonest use of four cheques.[4] Ms Sio and Ms Uitime both signed the four fictitious cheques. Ms Sio cashed two cheques and Ms Uitime cashed the other two. Around three hours after cashing the cheques, Ms Sio made a $3,000 cash deposit to her credit card account. The Crown alleged that, in succeeding days, Ms Sio went to the Sky City casino with Ms Uitime and lost money and made further cash deposits into her credit card and bank accounts.
[4]R v Uitime [2020] NZDC 20663.
The issue at Ms Sio’s trial was whether the prosecution could prove beyond reasonable doubt that Ms Sio knew the cheques she cashed were fraudulent.[5] In a careful and comprehensive 184 paragraph judgment, Judge Yelavich concluded, on the basis of specified circumstantial evidence, that Ms Sio knew, when she cashed the cheques “that the cash was not for legitimate suppliers or for the good faith remuneration of herself or Project employees”.[6]
[5]District Court verdicts judgment, above n 1, at [19].
[6]At [179].
In sentencing Ms Sio, the District Court Judge declined her application for a discharge without conviction.[7] She held that, taking into account the nature of the offending and the aggravating and mitigating factors, the overall gravity of the offending was moderate.[8] She considered it was speculative whether Ms Sio would be barred from social work registration or her future travel impacted; the impact on her employment, reputation, and mental health was a direct consequence of the offending not the conviction, or there was no real and appreciable risk of an impact; and the suggestion of loss of matai titles could be given no weight.[9] Ms Sio was convicted and fined $3,000.[10]
[7]District Court sentencing judgment, above n 2, at [56].
[8]At [37].
[9]At [39]–[53].
[10]At [64].
On appeal, relevantly, the High Court Judge stated:[11]
[18] An appeal against conviction is by way of rehearing. The appellate judge must make his or her own decisions on the issues. The appellant has the task of pointing to error. But, an appeal is not a re‑trial and the appellate judge should bear in mind that the trial judge had the advantage of experiencing the evidence in person.
[19] In a circumstantial case with many evidential strands and no fundamental error identified it is very difficult for an appellant to overturn a conviction. In this case, for example, there can be no suggestion that at the end of the evidence an application for discharge under s 147 of the Criminal Procedure Act 2011 would have succeeded. Ineluctably, and taking the prosecution’s case at its highest, there was sufficient evidence on which the Judge, properly directed, could reasonably have convicted.
[20] Therefore, the appellant’s very difficult task in this case is to unpick the strands of the circumstantial evidence rope to show that the Judge gave them too much strength and, in fact and law, the rope was too weak to bear the weight of convictions. In other words, the Judge should have been left with a reasonable doubt as to Ms Sio’s guilt.
[11]High Court judgment, above n 3 (footnote omitted).
The High Court Judge found as follows:
(a)He dismissed Ms Sio’s ground of appeal relating to the District Court Judge’s assessment of eight text message exchanges between Ms Sio and Ms Uitime as relevant. The Judge rejected the proposition the District Court Judge had failed to distinguish between what the text messages might indicate was Ms Sio’s knowledge at the time the text messages were exchanged and at the time she cashed the cheques.[12] He considered the text messages “might well found such inferences”,[13] and “the [District Court] Judge’s examination and use of the text messages was careful, reasonable and open to her”.[14]
(b)He did not accept Ms Sio’s point that the District Court Judge mischaracterised the evidence of a chartered accountant called by Ms Sio that Ms Uitime “needed” the money from the cheques Ms Sio cashed to fund her gambling.[15]
(c)He agreed the gravity of the offending was moderate and much of the burden of the consequences of conviction came from the finding that Ms Sio is guilty.[16] The consequences are not “out of all proportion to the gravity of the offending”.[17]
Submissions
[12]At [23].
[13]At [24].
[14]At [25].
[15]At [32]–[33].
[16]At [77]–[78].
[17]At [79] (emphasis omitted).
Mr Chisnall KC, for Ms Sio, submits that the District Court Judge erred in her assessment of the text messages and the expert evidence, and that the High Court Judge erred in his approach to s 232(2)(b) of the Criminal Procedure Act 2011 (the Act). The text messages were not orthodox after-the-fact evidence and special caution was required as to how they were used. The expert’s evidence was analysed in isolation. It is seriously arguable that the High Court Judge misdescribed the test for appellate intervention by not referring to Sena v New Zealand Police,[18] and introducing the need for a “fundamental error”.[19] Mr Chisnall submits Ms Sio should have been discharged without conviction because the consequences of the conviction stemmed from the conviction rather than the offending.
[18]Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575.
[19]Citing High Court judgment, above n 3, at [19].
Mr Eng, for the Crown, submits the proposed grounds of appeal disclose no risk of a miscarriage of justice and there was no error in declining the application for a discharge without conviction. The application for leave to bring a second appeal should be declined.
Should leave to bring a second appeal be granted?
Under s 237(2) of the Act, we must not grant leave to appeal against the determination of a first appeal unless we are satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred, or may occur, unless the appeal is heard. Both thresholds are high. The first threshold is only likely to be met where the proposed appeal gives rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”,[20] including where a question would have “broad application beyond the circumstances of the particular case”.[21] The Court is slow to grant leave in relation to the second threshold where “success for an appellant would require this Court to reverse concurrent findings of fact below”.[22] That is particularly so where the trial was before a judge alone, because the applicant has had the benefit of two judgments with reasons for factual findings.[23]
[20]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], citing Keenan v R [2005] NZSC 63 at [5]; Tainui v R [2008] NZSC 59 at [2]; Bull v R [2005] NZSC 80 at [3]; and McGechan on Procedure (online looseleaf ed, Brookers) at [SC13.03] and [SC13.04]. We note that the references to McGechan on Procedure do not appear to exist in the current edition.
[21]McAllister v R, above n 20, at [36].
[22]R (CA176/2016) v Police [2016] NZCA 403 at [26], citing Butler v Police [2016] NZCA 27 at [3].
[23]R (CA176/2016) v Police, above n 22, at [26], citing Warren v R [2016] NZCA 108 at [30].
We do not consider either threshold for the granting of leave to appeal is met. The proposed appeal does not give rise to an issue of general principle or importance. And we do not consider a miscarriage of justice may have occurred or may occur on the basis of any of the proposed grounds of appeal:
(a)The assessment of the text messages was carefully and properly treated by both the District and High Court Judges.
(b)On the basis of the evidence, it was open to the District Court Judge not to accept the expert’s speculative hypothesis, as she did and as the High Court Judge held she could.
(c)The High Court Judge’s summary description of the nature of the appeal, read in context, did not lead the Court into error. The threshold is high; not every error amounts to a miscarriage of justice.[24]
(d)The District and High Court Judges did not err in relation to the discharge without conviction.
Result
[24]McAllister v R, above n 20, at [38].
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Solicitor, Manukau for Respondent
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