Devoy v R - [2017] NZCA 213

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/2016
[2017] NZCA 213

BETWEEN	ELI DEVOY Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2017
Court:	Harrison, Gilbert and Katz JJ
Counsel:	J N Bioletti for Appellant T A Simmonds and M S Gatland for Respondent
Judgment:	25 May 2017 at 10.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

The Serious Fraud Office (the SFO) charged Eli Devoy, her brothers and family associates with numerous counts of fraud. It alleged that they had operated an elaborate mortgage fraud scheme, using the crude but time‑honoured process of submitting falsified and forged documents to lending institutions to obtain loans on 11 residential properties. Ms Devoy, her family and associates were said to have benefited unlawfully by about $6 million.
The charges were tried before Judge Gibson sitting without a jury over a 10‑week period in the Auckland District Court. The Crown’s case was that Ms Devoy — also known as Ellie Stone, Eli Ghorbani and Elaheh Ghorbani Sar Sangi — was the mastermind of the operation. Her defence, about which she gave evidence, was that she was duped by a trusted friend, Zohreh Homei Azimi, and that in all cases she was no more than an innocent conduit in submitting fraudulent and forged documents to the various lending institutions.
Judge Gibson rejected the essence of Ms Devoy’s defence.[1] He found her guilty of 17 charges of deception, two charges of dishonestly using a document and one of knowingly using a forged document. Four charges were dismissed. Ms Devoy had earlier pleaded guilty to four charges of obtaining a pecuniary benefit by deception. She was convicted and sentenced to five years’ imprisonment with a minimum period of imprisonment of two and a half years.[2] She has appealed against conviction and sentence.
[1]Serious Fraud Office v Devoy [2016] NZDC 10933 [Reasons for verdicts].
[2]R v Stone [2016] NZDC 15968 [Sentencing remarks] at [25] and [27].
Judge Gibson found the other defendants guilty of various offences. They were convicted and sentenced to terms of imprisonment. Only Ms Devoy’s brother Mehrdad Ghorbani appeals, and his appeal is limited to sentence only. We shall determine that appeal in a judgment being delivered contemporaneously.[3]
[3]Ghorbani v R [2017] NZCA 214.
Ms Devoy’s conviction appeal was originally advanced on three principal grounds. The first was that the SFO investigation into the charges was deficient. Ms Devoy claimed that the agency failed to investigate properly the allegedly fraudulent conduct of her trusted associate Ms Azimi on two fraudulent transactions. However, even if there were deficiencies, which is not at all apparent, Mr Bioletti did not suggest that they materially affected the verdicts against Ms Devoy. The second ground of appeal was that the Judge made factual errors. Mr Bioletti accepted that there was no arguable foundation for this ground. He later withdrew both grounds of…

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 Devoy v R

Details

AGLC: Devoy v R [2017] NZCA 213
Case: [2017] NZCA 213
Decision Date: 25 May 2017 at 10.30 am

CaseChat Overview and Summary

Eli Devoy appeals against her conviction and sentence for fraud and related offences. Devoy and her family members had been charged with participating in a mortgage fraud scheme which involved providing falsified and forged documents to lending institutions to obtain loans on residential properties. Devoy was found to be the mastermind of the scheme and was convicted on 17 charges of deception, two charges of dishonestly using a document, and one of knowingly using a forged document. Devoy's appeal against conviction was based on the premise that trial counsel had erred in several respects. Devoy's appellate counsel submitted that trial counsel had failed to put to Zohreh Homei Azimi and others Devoy's exculpatory answers offered in cross-examination, and had failed to apply to recall Azimi. Devoy's appellate counsel submitted that trial counsel had erred in not challenging the prosecution witnesses on issues about which they had no prior instructions. The Court found that trial counsel had not erred in any respect. The Court found that trial counsel had acted according to their instructions throughout, and had no previous instructions from Devoy on the factual content of her exculpatory answers proffered in cross-examination. The Court found that trial counsel were not obliged to cross-examine witnesses on issues about which they had no prior instructions, nor were they bound to produce documents of which they had no knowledge. The Court found that the one error, which was accepted by trial counsel, was inconsequential and had no material effect on the particular verdict. The appeal against conviction and sentence are dismissed.

Orders