Delamere v Serious Fraud Office - [2009] NZCA 142

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ORDER IN FORCE PROHIBITING PUBLICATION OF CONTENTS OF AFFIDAVIT FROM JURY FOREPERSON
IN THE COURT OF APPEAL OF NEW ZEALAND
CA380/2008
[2009] NZCA 142
BETWEENTUARIKI JOHN EDWARD DELAMERE

Appellant

ANDSERIOUS FRAUD OFFICE

Respondent

Hearing:10 February 2009

Court:Hammond, Chambers and Ellen France JJ
Counsel:Appellant in person

S J E Moore SC and A M Killeen for Respondent

Judgment:22 April 2009 at 11 am

JUDGMENT OF THE COURT

ALeave to admit new evidence is declined and the appeal is dismissed.
BCosts are reserved.

REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
PARA NO
Introduction  [1]
Factual background  [2]
The charges  [4]
The High Court judgment  [15]
Grounds of appeal  [24]
FIRST APPEAL GROUND: CONSIDERATION OF RELEVANT FACTORS  [29]
Sufficiency of evidence  [30]
         The manner of the SFO’s investigation  [42]
         Did Mr Delamere establish he was not guilty?  [53]
         Mr Delamere’s behaviour  [61]

Second appeal ground: reliance on an irrelevant factor?   [62]
Third appeal ground: failure to consider the Bill of Rights?  [65]
Fourth appeal ground: charges under s 229A  [67]
Conclusion  [68]
COSTS  [70]
Introduction
[1] Following a jury trial, the Hon Tuariki Delamere was acquitted on charges of using a document with intent to defraud, dishonestly using documents and of making a false document with intent. Mr Delamere unsuccessfully sought an award of costs under the Costs in Criminal Cases Act 1967: HC AK CRI 2005-004-004972 30 May 2008, Courtney J. He now appeals against that decision. The appeal raises questions about the various considerations relevant to the decision under s 5(2) of the Costs in Criminal Cases Act whether or not to award costs.
Factual background
[2]       Mr Delamere is an adviser to persons seeking to immigrate to New Zealand. The particular focus on this occasion was applicants under the “business investor category” (“BIC”). The New Zealand Immigration Service (“NZIS”) policy applicable to business investor applicants required them to invest at least $1 million in an “acceptable investment” in New Zealand for a period of two years. One of the requirements of an acceptable investment was that it was capable of providing a commercial return.
[3]       Mr Delamere devised a scheme that avoided an applicant having to use his or her own funds. In brief, Mr Jiang who was an associate of Mr Delamere and who was also an applicant under the business investor category, invested $1 million in a New Zealand company incorporated by the appellant. The company was called New Zealand Golden Harvest Investment & Trust Limited (“Golden Harvest”). Mr Jiang was the sole director and shareholder. The New Zealand company then invested the $1 million into a bank account of a friendly Hong Kong company (Harvest International Travel Services Limited, “Hong Kong Harvest”) which in turn sent the money back to New Zealand in the name of a different applicant. This was repeated on seven occasions between September 2001 and February 2002. As Courtney J said at [21] the “longest the funds…

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.

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Details

Case: [2009] NZCA 142
Decision Date: 22 April 2009

CaseChat Overview and Summary

Tuariki John Edward Delamere, an immigration adviser, was acquitted on multiple charges of fraud and false documentation. He appealed the High Court's decision to deny him costs under the Costs in Criminal Cases Act 1967, arguing the Serious Fraud Office (SFO) did not adequately consider his scheme's compliance with immigration policy, lacked sufficient evidence, conducted an improper investigation, and acted without good faith. The appeal court considered the SFO's evidence sufficient to justify the prosecution, the investigation reasonable despite some shortcomings, and the prosecution's conduct not warranting a costs award. The court found no error in principle in the trial judge's approach to the statutory criteria for awarding costs. The appeal was dismissed, and costs were reserved.

Orders