Din v R
[2014] NZCA 316
•10 July 2014 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA721/2013 [2014] NZCA 316 |
| BETWEEN | SURESH DIN Appellant |
| AND | THE QUEEN Respondent |
| CA795/2013 | |
| AND BETWEEN | HEMANT KUMAR MAHARAJ |
| AND | THE QUEEN |
| Hearing: | 29 April 2014 |
Court: | Harrison, Courtney and Clifford JJ |
Counsel: | P F Wicks for Appellant Din |
Judgment: | 10 July 2014 at 2.00 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction on counts 1 to 11 in CA721/2013 is allowed. The convictions are quashed. There is no order for a retrial.
BThe appeal against conviction on counts 12 to 18 in CA721/2013 is dismissed.
CThe appeal against conviction and sentence in CA795/2013 is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Following a Judge-alone trial before Judge Gibson in the Auckland District Court Hemant Maharaj and Suresh Din were convicted of a variety of dishonesty offences.[1] The Serious Fraud Office (the SFO) laid charges arising from false invoices tendered to the North Shore City Council between 2000 and 2009 for roading repairs and maintenance work of various kinds. The Judge imposed sentences of imprisonment and home detention respectively. Mr Maharaj appeals some of his convictions and his sentence.[2] Mr Din appeals his convictions.
[1]R v Maharaj DC Auckland CRI-2010-004-20916, 13 June 2013 [Reasons for Verdict].
[2]The sentence was delivered in R v Maharaj DC Auckland CRI-2010-004-20916, 3 October 2013 [Sentencing Decision].
Most of the charges were laid jointly. There were four counts of using a document dishonestly under 229A(b) of the Crimes Act 1961 in relation to invoices rendered before 1 October 2003[3] and seven counts laid under s 228(b) in relation to invoices rendered after that date.[4] In addition, Mr Din faced seven counts of using a document with intent to defraud in relation to income tax returns for the 2002–2008 financial years.[5] Mr Maharaj faced two counts of attempting to pervert the course of justice, which related to a workbook containing false receipts and a work diary containing false entries provided to the SFO during its investigation.[6]
[3]Counts 8–11.
[4]Counts 1–7.
[5]Counts 12–18.
[6]Counts 19 and 20.
Mr Maharaj appeals his convictions on counts 4, 6, 7 and 9–11[7] on the grounds of errors by both trial counsel and the Judge which, either individually or cumulatively, resulted in a miscarriage of justice. His sentence appeal is brought on the ground that the sentence was manifestly excessive as a result of the starting point being too high, the Judge wrongly treating certain factors as aggravating and disparity between Mr Maharaj and Mr Din.
[7]The appeal was initially brought against all convictions but during oral argument Mr Tennet acknowledged that the appeal could only succeed in relation to counts 4, 6, 7 and 9–11. The appeal was abandoned in respect of the remaining counts.
Mr Din appeals his conviction on the ground that errors by trial counsel resulted in a miscarriage of justice.
Mr Maharaj and Mr Din both swore affidavits on appeal and were cross‑examined. Their respective trial counsel, Mr Bioletti and Mr Sharrock, also provided affidavits and were cross-examined.
The offending
The relationship between Mr Maharaj and Mr Din
Mr Maharaj came to New Zealand from Fiji more than 20 years ago. He and Mr Din had been friends in Fiji. Mr Din had married Mr Maharaj’s sister, Anna. Mr Din and Anna also moved to New Zealand. The friendship survived the break-up of that marriage. Mr Din felt beholden to Mr Maharaj as a result of Mr Maharaj saving his life following a boating accident in Fiji and helping him after his marriage broke down.
The false invoices
Mr Maharaj, who is a civil engineer, was employed by the Council between 1990 and 2009. He held various positions, including as team leader in the network operation team. In that position his responsibilities included managing transport maintenance works and services and engaging contractors for maintenance work to areas such as roads, pavements and carriageways. Until April 2005 Mr Maharaj had the authority to approve expenditure for this kind of work up to $5,000 without higher approval. After that date his authority was increased to $25,000.
The Council’s preferred contractor during the relevant period was Fulton Hogan. It had a contract with the Council for specified services at a monthly rate, whether or not Fulton Hogan itself was required to undertake the work. Work falling outside the scope of the contract was the subject of individual contracts at an agreed rate. Although Fulton Hogan did not have the exclusive right to such work, a prescribed procedure had to be followed if Council staff wished to use another contractor. This required a quotation from the other proposed contractor and approval from the staff member’s superior.
In 1998 Mr Maharaj came to Mr Din with a proposal. At the time Mr Din ran a food safety business. He had one contract with the Council for that type of service but not for road maintenance. Mr Maharaj wanted to provide work for a contractor named Ricky Faiva, who was then in a relationship with Mr Maharaj’s sister (Mr Din’s ex-wife). Mr Maharaj told Mr Din that he (Mr Maharaj) could engage Mr Faiva to undertake general road maintenance and similar work but that Mr Faiva did not want to be bothered producing invoices. Mr Maharaj asked Mr Din to provide the invoices instead and after the Council paid the invoices, to give Mr Maharaj the cash and Mr Maharaj would use it to pay the contractors.
Mr Din agreed to help Mr Maharaj. Once or twice a month Mr Maharaj would call Mr Din and give him details of hours and amounts to include in the invoices. Mr Din said that he trusted Mr Maharaj when he said that the work had been done and had no reason to doubt that the invoices he was rendering related to actual work undertaken for the Council. Mr Din prepared the invoices and sent them to the Council.
Between January 2000 and June 2009 Mr Din submitted 151 invoices for road maintenance. The Council paid a total of $842,820.95 on receipt of them. Payments from the Council were banked into an account in the name of Mr Din’s family trust which was used for day-to-day expenses. Mr Din then withdrew the cash, less an amount for tax, and paid the balance over to Mr Maharaj.
In July 2009 the Council’s Network Operations Manager, Nicholaas Swanepoel, began to investigate the use of contractors other than Fulton Hogan. He was Mr Maharaj’s immediate superior. Mr Swanepoel carried out a review of Fulton Hogan’s contractual arrangements. He noticed other contractors being paid out of the maintenance budget. This included Mr Din, whose name he did not recognise. Mr Swanepoel printed one of the invoices from Mr Din. It was on his desk when Mr Maharaj saw it and asked why he was looking at it. Later the email disappeared. It was later found at Mr Maharaj’s desk. A meeting with the risk management team was arranged and Mr Maharaj asked to attend. He did not do so, going home sick instead.
In August 2009 Mr Swanepoel visited 19 sites in respect of which Mr Din had rendered invoices. Mr Swanepoel and another Council manager made a further visit to those sites a week later. They determined that no work had taken place at 17 of the sites and very minor work at a further two. The SFO was called in.
Mr Din’s tax returns
When Mr Din, through his accountant, Mr Sharma, filed tax returns for the years ended 31 March 2002–2008 he included the amounts he had invoiced the Council as income and claimed expenditure against it. In the 2002 year this included a claim of 40 per cent of the income for subcontractors, as well as general expenditure for advertising, accountancy and so on. In the 2003–2008 years the money he had received from the Council was included as “self-employed income”. There was no expenditure claim for subcontractors in these years but other expenses were claimed, including food, motor vehicle depreciation, accountancy costs and telephone expenses. The result of this expenditure, which he was not entitled to claim against the non-business income, was that he paid less tax than he should have done.
Mr Maharaj’s work book and diary
In the course of the SFO investigation Mr Maharaj was served with a statutory notice requiring him to provide all documents relating to his involvement with Mr Din. The Council provided Mr Maharaj’s 2009 work diary. Mr Maharaj told the SFO that he had no other documents.
Later, in civil proceedings brought against him by the Council, Mr Maharaj filed an affidavit annexing photocopied pages of what appeared to be a receipt book recording receipts of cash payments made to and signed for by Mr Faiva between January 2007 and June 2009. The SFO obtained the receipt book from Mr Maharaj’s lawyer. It was obvious that receipts had been falsely added; although the payments were said to have been made in cash they included amounts ending in 1, 2 and 5 cents, for which there was no legal tender. The tax rate used was the rate that applied only from 1 April 2009 onwards. Customs records showed that there were some dates on which the receipt book had apparently been signed by Mr Faiva when Mr Faiva was not actually in New Zealand. The receipt book founded the first charge of perverting the course of justice.
After Mr Maharaj’s first interview with the SFO he disclosed the existence of three further work diaries, including one relating to 2008. The SFO already had photocopies of pages from that diary from Mr Swanepoel who had taken copies in February 2009 in relation to a different matter. A comparison of those pages with the diary provided by Mr Maharaj showed that entries had been added which purported to record site visits undertaken in accordance with the invoices. At a second interview with the SFO Mr Maharaj admitted that, contrary to what he had said at the first interview, he had added entries to the diary at the time he was dismissed by the Council. This act formed the basis for the second charge of attempting to pervert the course of justice. The Judge found it to have been a deliberate attempt to bolster the claim that the work had been done.
The Judge’s decision
Judge Gibson heard this trial over three weeks in April and May 2013 and delivered verdicts with lengthy written reasons on 13 June 2013. At an early stage in his reasons he identified the legal elements of the various charges and the claim of right defences. He specifically referred to the fact that a mistaken belief as to the facts of circumstances need not be based on reasonable grounds or be reasonable in itself.[8] No issue was taken with the Judge’s directions on these aspects.
[8]Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321 at [28]–[58].
The Judge considered each charge. Each count under s 228(b) and s 229A(b) was particularised by reference to specified invoices. The Crown case in relation to the invoices was that either the work had not been done or such work that had been done was only minor. The Crown had called evidence that suggested that Mr Faiva had not done the work invoiced for, including evidence that on many of the dates shown in invoices Mr Faiva was out of New Zealand and evidence from Mr Faiva’s then employer that Mr Faiva was often working more than 70 hours per week including weekends.
The Crown also addressed Mr Maharaj’s assertion that another member of Mr Faiva’s subcontracting team undertook the work when Mr Faiva was away; there was evidence from a quarry owner, Mr Blackmore, that quantities of rip-rap claimed in the false invoices as being laid could not have been laid by one or two workmen and the small one-tonne truck that Mr Faiva owned. In addition, there was evidence from people who worked or lived in the areas in which the work was said to have been done that they did not see any such work being undertaken.
The Judge summarised the Crown case as follows:[9]
… The Crown’s position was that although it accepted Mr Faiva, who was not called to give evidence, existed the work was never done at the time or before it was invoiced and only on one or two occasions subsequently, when Mr Maharaj was under investigation by his employer, was there any attempt to attend to work described in the invoices.
… As for the earlier invoices the Crown accepted that it was not possible to inspect sites for work invoices as long as 13 years previously and then to determine whether the work had been carried out. It submitted that the invoices showed a clear pattern of schematic fraud as evidence was available to show that the work described in the more recent invoices rendered in 2008 and 2009 had not been undertaken so that the earlier invoices supporting Counts 3–11 must have been rendered as part of the fraudulent scheme.
[9]Reasons for Verdict, above n 1, at [20] and [35].
In considering the defence case the Judge referred to the evidence that an “Island team” had previously undertaken work for the Council and was known about by at least two Council supervisors, one of which, Mr Somerville, had given evidence. The Judge summarised the defence case as being that:[10]
… the Crown had not proved the essential elements of each of the counts beyond reasonable doubt, that there was unsatisfactory evidence of pecuniary gain or pecuniary advantage and that it was consistent with Mr Maharaj devising the scheme so as to be able to offer work to Pacific Islanders and that work was undertaken and properly paid for.
[10]At [47].
In relation to the invoices on which counts 1, 2, 3, 5 and 8 were based the Judge found that in the majority of cases work was not done to support the invoices at the time they were rendered and any work done later was done to mislead the Council’s investigators.[11]
[11]Reasons for Verdict, above n 1, at [134]. Note, however, that the Judge’s findings towards the end of the excerpt are not the subject of appeal.
In relation to the earlier invoices that were the subject of counts 4, 6 and 7 the Judge could not exclude the possibility that the work invoiced for had, in fact, been done.[12] This was mainly due to the passage of time. These invoices were admittedly false in the sense that neither Mr Din nor any subcontractor to him had undertaken the work but they related to work of a kind that made it impossible to assess whether it had, in fact, been done. This included, for example, collecting rubbish, re-grassing or removing and re-spreading sand. The Judge noted that in reaching this conclusion, he accepted that an “Island team” was working at some of the subject sites.
[12]At [135].
Nevertheless, the Judge considered that, even in the absence of direct evidence that the work was not done, he could still be satisfied that the invoices were fraudulent:[13]
… I have not been able to draw any conclusion as to whether work was done or not done, especially given that I accept that an ‘Island team’ was working and undertaking work at some of these sites. However that is not the end of the matter because the invoices were documents used by the accused in the way already described and were used dishonestly and without claim of right. They were used dishonestly in the sense that the Council was misled into believing that Mr Din was a contractor when he was not and the contractor in reality was [Mr] Maharaj who was, on his account, instructing Mr Faiva to attend to the work with Mr Maharaj undertaking the paper work. Consequently the arrangement was entered into with the intention of disguising from the Council the true nature of what was occurring and neither man could have been considered they had a claim of right or a belief that the act was lawful. Mr Maharaj had been under no misapprehension that his employer would not have countenanced the use of a fictitious contractor and Mr Din said in his interview that he believed that was why the arrangement was entered into, and so even on his interview, putting the matter at its highest insofar as he is concerned, he could not have been under any illusion that the arrangement was lawful, something he himself conceded in the course of interview. …
[13]At [135].
In relation to counts 8–11 the Judge considered that notwithstanding the availability of evidence as to whether the work was done, the invoices were used to mislead the Council and therefore used with intent to defraud:[14]
As for counts 8, 9, 10 and 11, these counts were laid under s 229A(b) and a slightly different analysis is required. The invoices were, as I have said, documents and were used, points not in contention, capable of being used to obtain a pecuniary advantage, again an undisputed point. The real issue is whether the invoices were used with intent to defraud and for the purpose of obtaining a pecuniary advantage. On my analysis they were, notwithstanding the availability of evidence to settle the issue as to whether the work was done which supported the invoices. The documents were used for the same purpose of misleading the Council that I have already outlined and so were used with intent to defraud and for the reasons I have already stated were used for the purpose of obtaining a pecuniary advantage. …
[14]At [137].
On the issue of pecuniary advantage the Judge had previously accepted the Crown submission that Mr Maharaj had obtained a pecuniary advantage through receipt of monies paid by the Council which were, more likely than not, used on building work at his home and that Mr Din had used the portion of monies he received to justify tax deductions for expenditure he was not entitled to.[15]
[15]At [124].
The evidence regarding the building work to Mr Maharaj’s home came from Mr Steele, a chartered accountant. His evidence canvassed the fact that in 2001 Mr Maharaj had applied for building consent to add 38 square metres to his property in Glenfield and had been given a value of $100,000 for that proposed work. In September 2004 Mr Maharaj amended the building consent from 38 square metres to 213 square metres. No fresh value was given for that additional work. However, a Council employee, Mr Morris, gave evidence of a conversation in 2008 in which Mr Maharaj described the alterations to him and estimated the cost at $350,000.
The evidence regarding Mr Din’s tax position came from his own accountant and from Mr Steele.
In the case before us Mr Maharaj needed to show either that there were errors by counsel that, individually or cumulatively, would have affected the outcome or, if there were not, that there was nevertheless some irregularity in the trial that gave rise to a miscarriage of justice.
Appeal by Mr Maharaj against conviction: trial counsel error
Mr Tennet submitted that Mr Maharaj’s trial counsel, Mr Bioletti, made four errors in his management of the trial. These were not calling witnesses that could have been helpful to Mr Maharaj’s defence,[16] not cross-examining on certain matters, dissuading Mr Maharaj from giving evidence and not properly considering emails disclosed by the Crown during the trial or seeking an adjournment to allow him to do so. Mr Maharaj’s complaints generally encompass inadequate preparation, inadequate cross-examination, failing to properly present a defence and wrongly dissuading each defendant from giving evidence.
Relevant principles
[16]One of these was Mr Faiva but Mr Tennet did not advance the submission in relation to him.
The obligations on defence counsel in terms of obtaining instructions, preparing for trial, presenting the available defences and advising on whether a defendant should give evidence are well established. Counsel must advise a defendant of the available defences and options for trial and present the defence adequately.[17] Counsel should not take any significant step without first explaining the options to the defendant.[18] Counsel should obtain written instructions as to whether the defendant will testify.[19]
[17]R v Tranter CA256/01, 16 April 2002 at [10]–[12]; R v Merrilees [2009] NZCA 59 at [24].
[18]R v K (CA421/08) [2009] NZCA 176 at [41].
[19]Chambers v R [2011] NZCA 218 at [1], [12]–[17].
However, error by counsel will not, in itself, result in a miscarriage of justice warranting a new trial. In considering appeals brought on the basis of counsel error the Supreme Court emphasised in Sungsuwan v R that, while the appropriate approach is consideration of whether there was an error or irregularity on the part of counsel and whether there is a real risk of it affecting the outcome, if it could not have affected the outcome further scrutiny of counsel’s conduct is unnecessary.[20]
Failure of trial counsel to call witnesses
[20]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
The witnesses that Mr Tennet submitted ought to have been called were Chris Glanfield, Bevan Boyett-Schultz, Mohammed Shaiham Razak, Bob Aicken and Donald Somerville. Mr Aicken was called by Mr Din’s counsel and it was therefore unnecessary to call him. Mr Somerville was called by the Crown and gave helpful evidence under cross-examination. Mr Bioletti swore an affidavit in which he stated that he did not receive any clear instructions from Mr Maharaj regarding the other witnesses. They were potential witnesses whom he investigated and formed the view that their evidence would not be helpful to Mr Maharaj.
Mr Glanfield was suggested for the purpose of showing that the Council knew that Mr Maharaj was organising and paying Mr Faiva from funds received from the Council. But the draft affidavit provided by Mr Maharaj indicated that Mr Glanfield’s knowledge did not extend that far. The same was the position with Mr Boyett-Schultz and Mr Razak. Mr Bioletti did not actually meet with them but was provided with draft affidavits, in which they confirmed knowing of the use of the contractors and a Samoan work gang but did not comment on Mr Maharaj’s involvement in their contracts.
In these circumstances, we are satisfied that there was no error by Mr Bioletti in not calling these witnesses.
Not calling a quantity surveyor or otherwise addressing the cost of Mr Maharaj’s renovations
Mr Maharaj criticised Mr Bioletti for not calling a quantity surveyor to address the Crown’s assertion that he had obtained pecuniary advantage from the use of the invoices through renovations to his house. He deposed that the amended plan to his house was 195 square metres which, at the then standard rate of $764 per square metre, would have cost $148,980 and that he had borrowed a total of $170,000 from his bank to do that work.
Mr Bioletti could not recall Mr Maharaj providing any document to show that he had borrowed money to pay for the renovations. Nor did Mr Maharaj produce any such documents before us.
Mr Bioletti did not cross-examine on the issue of Mr Maharaj borrowing to pay for the work. Oddly the matter was touched on by Mr Sharrock. He cross‑examined Mr Steele briefly on the square metre cost and suggested that the title would have shown a mortgage at the time of the building permit being issued. However, when the Judge suggested that the witness be shown a copy of the certificate of title, Mr Sharrock ceased that line of cross-examination.
Mr Maharaj sought leave to adduce the evidence of a quantity surveyor and annexed a report to his affidavit from a Mr Bell, a quantity surveyor.[21] Mr Bell estimated the cost of the work at $183,031 (excluding GST) though he noted that:
This estimate has taken into account that the owner Mr Hemant Maharaj has done a lot of building works himself. This was done to save building costs as he did not charge for any labour work that he did to his house.
When I was asked to do this cost report the house renovation work was incomplete due to the owner Hemant having to undergo a serious heart operation in March 2008.
He was also made unemployed in September 2009 and could not afford to complete the renovation work.
It would appear that the renovation work has stopped due to the above facts.
[21]There was no objection from the Crown and we grant leave to adduce the further evidence.
Mr Bell’s report does not identify what the standard rate for building was in 2004.As Mr Bioletti accepted, the issue of the renovations to Mr Maharaj’s house was significant and one to which he should have paid closer attention. Ultimately, it formed the basis for the Judge’s finding that Mr Maharaj had obtained a pecuniary advantage. However the further information that Mr Maharaj has placed before this Court does not provide any basis for finding that there was a miscarriage of justice as a result of Mr Bioletti’s error. There is no evidence to support Mr Maharaj’s claim regarding the standard rate for building work. Mr Maharaj’s heart condition would clearly have undermined his claim to have undertaken work himself. Nor has Mr Maharaj provided any documentary support for his claim regarding the borrowings he claims as the source of finance for the renovations.
Failing to cross-examine adequately
Mr Tennet identified 14 matters that Mr Bioletti did not adequately address in cross-examination as he should have. They were largely inconsequential. Only one has any substance: the point that there was no evidence of pecuniary advantage. Mr Maharaj claims that an examination of his bank statements showed that he did not obtain a pecuniary advantage. As discussed, we agree that Mr Bioletti failed to properly consider this issue. However, in the absence of evidence (such as a bank loan agreement or mortgage) on which to base cross-examination, this failure could not have affected the outcome. This is particularly so in light of Mr Din’s statement to the SFO that he gave Mr Maharaj cash; the absence of funds appearing in Mr Maharaj’s bank account would be inconclusive.
The other points are without substance. Briefly, they are:
(a)Even if Mr Faiva was not present the work was done by his foreman and team. This point was made by Mr Maharaj himself in his SFO interviews and Mr Bioletti referred to it in his closing address;
(b)It was payment received from the Council for these jobs that enabled Mr Faiva to go overseas, noting that his hourly rate, from his usual employment was only $16. This was a matter that could only have been elicited through calling Mr Faiva and Mr Tennet specifically did not submit that Mr Faiva should have been called;
(c)Mr Din had been registered as a supplier for the Council in 1995 and again in 2001 and, further, had been registered in 2005 under the name Tech One as a maintenance supplier. Mr Bioletti responded in his affidavit that, although this matter had been discussed, neither Mr Din nor Mr Maharaj was ever able to provide supporting evidence on which to found an assertion in cross-examination;
(d)Mr Maharaj had the authority under the network operations contract to use contractors other than Fulton Hogan. As Mr Bioletti correctly pointed out, the issue was not whether Mr Maharaj had the authority to use other contractors but whether he had followed the correct process in doing so and, in any event, this matter was put in the cross‑examination of Mr Swanepoel’s manager, Mr Potts;
(e)Mr Maharaj was not required to offer Fulton Hogan the particular job or to obtain three quotes as suggested by Mr Swanepoel. Again, this was put to Mr Potts in cross-examination;
(f)It was not irregular for Mr Din to issue invoices for work done by Mr Faiva, comparing it to Fulton Hogan itself issuing invoices for work done by its subcontractors. But such a comparison is flawed because the difference between Fulton Hogan issuing invoices for work done by its subcontractors and Mr Din issuing invoices done by Mr Faiva is that Mr Faiva was not a subcontractor to Mr Din;
(g)There was evidence of work being done such as maintenance of rip‑rap. Mr Bioletti cross-examined Mr Blackmore on this issue. However, that cross-examination was undermined by evidence from Mr Buchanan that maintenance of rip-rap would still have required a machine;
(h)Mr Blackmore was biased as a result of a dispute on a contract undertaken by Mr Blackmore’s company. Mr Bioletti established that Mr Blackmore’s company returned $200,000 in retention money to the Council;
(i)Mr Din’s former partner, Ms Modelia, was biased. Mr Bioletti cross‑examined Ms Modelia on this;
(j)Mr Swanepoel wished to have Mr Maharaj removed from the Council and effectively set him up. We accept Mr Bioletti’s response that this assertion could not realistically be advanced given that the criminal investigation was actually undertaken by the SFO not the Council;
(k)The Council’s engineering department was audited. Mr Bioletti could not recall Mr Maharaj raising that issue with him and it does not seem significant. There was no evidence to suggest that any of Mr Din’s invoices had actually been audited;
(l)Mr Maharaj maintains that he had an honest belief that he was entitled to act as he did. This, of course, is not a matter that lent itself to cross-examination but Mr Bioletti properly closed on this basis.
Mr Maharaj not giving evidence
Mr Maharaj maintained that before and during the trial he made it clear to Mr Bioletti that he wished to give evidence but that Mr Bioletti made the decision that he would not and advised the Judge of that without further reference to Mr Maharaj.
Mr Bioletti deposed that he had advised Mr Maharaj that he should not give evidence and that Mr Maharaj accepted that advice. He did not obtain written instructions from Mr Maharaj on the point and there is no file note of the advice or the decision. Mr Bioletti volunteered that in 30 years of practice in the criminal law he had never taken written instructions on this issue of giving evidence. While it is not decisive in this appeal, Mr Bioletti’s approach falls well short of best practice.
In his evidence and before us in cross-examination Mr Bioletti gave the reasons for his advice to Mr Maharaj not to give evidence. His main concern was that during the Crown case Mr Maharaj told him that he (Mr Maharaj) had used a broom to put sand on the Northcote Library site. This was of concern because it was an important part of the Crown case that work had been done after the beginning of the investigation, including at the Northcote Library site. Mr Maharaj’s admission to Mr Bioletti would have created a serious risk for Mr Maharaj. It was not, however, the only problem.
Mr Maharaj had filed an affidavit in the civil proceedings deposing that he had visited the sites that Mr Swanepoel had visited (including the Northcote Library site) and that Mr Swanepoel’s claim that no work had been done was wrong. Mr Maharaj had annexed to the affidavit photographs taken by him of the Northcote Library site. As a result of the affidavit Mr Swanepoel visited the site again and noticed sand between cobblestones that had not been there previously.
Mr Bioletti was concerned that Mr Maharaj’s admission to him would have meant that Mr Maharaj’s affidavit had been false, statements that Mr Maharaj made to the Serious Fraud Office had been false and that Mr Maharaj must have taken steps during the investigation to hide the fact that work had not been done. Moreover, Mr Bioletti was conscious of his own obligations to ensure that Mr Maharaj did not mislead the Court.
In cross-examination by Mr Dickey before us Mr Maharaj denied making the admission. Having considered all of the evidence and had the benefit of seeing Mr Maharaj and Mr Bioletti we accept Mr Bioletti’s evidence that Mr Maharaj made an admission to him which made it untenable for Mr Maharaj to give evidence. Had Mr Bioletti recorded his advice in writing and obtained Mr Maharaj’s acceptance of it in writing, this issue would not have arisen. Nevertheless, we are not satisfied that there was any error by Mr Bioletti advising Mr Maharaj against giving evidence. We are satisfied also, based on our assessment of Mr Maharaj under cross-examination in this Court, that he would not have presented at trial as a credible or reliable witness.
Failing to adduce Mr Somerville’s affidavit
In his affidavit sworn for the appeal Mr Maharaj sought to have Mr Somerville’s affidavit sworn in the civil proceedings adduced in this proceeding. He claimed that the affidavit was important because he identified the areas where he had seen work done and seen Mr Faiva and his workmen on rip-rap work in Hobson Road, Albany.
There is no substance to this complaint. Mr Somerville was called by Mr Din and gave evidence that was favourable to Mr Maharaj and Mr Din. This included seeing the Island team working on Hobson Road, Albany, replacing rip-rap. He gave other evidence of seeing that team working on other sites and it is apparent from the Judge’s reasons that Mr Somerville’s evidence contributed significantly to the Judge’s finding that the “Island team” had been engaged at some previous time and that the possibility of their having done work in earlier years could not be excluded.
Given that Mr Somerville actually gave evidence there is no apparent basis on which his affidavit would have been admissible. Further, he was cross-examined on the affidavit (though it was never put in evidence). To the extent that he was cross-examined on it, it was to highlight an inconsistency between his affidavit and his evidence-in-chief. In these circumstances there can be no criticism levelled at Mr Bioletti for not having sought to adduce the affidavit in evidence.
Late disclosure of emails
During the course of the trial a witness, Mr Hudson, disclosed that he had a large number of emails that had not been provided to the defence. These numbered about 14,000 and had been obtained by the SFO from Mr Maharaj’s work computer or from the Council’s hard drive. Mr Sharrock, for Mr Din, went and inspected the emails and returned with about 80 emails, some of which were helpful. However, Mr Bioletti did not use them and did not ask for time to go through them more fully.
In his affidavit Mr Bioletti deposed to having carefully reviewed the material that Mr Sharrock had obtained and recalled that some of it was used for trial. In his judgment it was unnecessary to seek a further adjournment or to recall any witness.
In submissions before us Mr Dickey pointed out that Mr Maharaj had not identified anything that might suggest that the emails did contain material that could have impacted on the outcome of the case. We agree that in these circumstances Mr Bioletti’s decision cannot be shown to have risked affecting the outcome of the trial.
Mr Bioletti’s personal circumstances
Underlying all of the complaints about Mr Bioletti’s performance was Mr Maharaj’s concern that Mr Bioletti’s personal circumstances affected his conduct of the defence. Mr Bioletti’s father died two days before the trial. The case was adjourned for a day to enable him to attend the funeral but Mr Maharaj says that more time should have been sought. Further, Mr Bioletti had financial difficulties at the time. Mr Maharaj felt that Mr Bioletti seemed rushed and disorganised. In response, Mr Bioletti acknowledged both the death of his father and the financial problems he was facing at the time but denies that either had any bearing on his performance.
This is not a matter that we need to consider further because we have already concluded that Mr Bioletti did not make any errors that could have affected the fairness of the trial.
Appeal by Mr Maharaj against conviction: error by Trial Judge
Mr Maharaj also asserts errors by the Judge in failing to give adequate reasons, failing to deal with crucial factual issues, reaching his verdict on grounds other than those advanced by the Crown and failing to properly consider the lack of dishonest intent or claim of right defences.
Relevant principles
As this Court noted in Wenzel v R, the verdict of a Judge sitting alone in indictable cases is to be treated as the equivalent of a jury verdict,[22] with the grounds of appeal limited by s 385(1)(b) of the Crimes Act[23] in the same way as if the accused had been tried before a Judge and jury.
[22]Wenzel v R [2010] NZCA 501 at [39].
[23]Repealed as of 1 July 2013 by s 6 Crimes Amendment Act (No 4) 2011. Now see s 232 of the Criminal Procedure Act 2011.
Criticism as to the Judge’s reasoning is to be viewed against the nature of the verdicts given by a Judge alone; in R v Connell this Court held that careful consideration is an elementary need, but not long exposition:[24]
What the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons.
…
In general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised in the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it would almost always be advisable to say so explicitly.
[24]R v Connell [1985] 2 NZLR 233 (CA) at 237–238.
In the context of fraud cases, however, it is now clear from the decisions in Eide v R[25] and Wenzel v R[26] that the features of a particular scheme also need to be explained and the critical factual and legal elements of each count of the indictment separately considered and conclusions reached.
Did the Judge determine counts 4, 6, 7 and 9–11 on a basis different from that advanced by the Crown?
[25]Eide v R [2005] 2 NZLR 504 (CA) at [26]–[27].
[26]Wenzel v R, above n 22.
Mr Tennet submitted that the rationale for the Judge’s findings on counts 4, 6, 7 and 9–11 at [135] departed from the way the Crown case was advanced. He argued that, whilst the Crown case was firmly based on the assertion that Mr Faiva did none of the work, the Judge’s finding that he could not exclude the possibility that it was done meant that the convictions on these counts were entered on the basis that the work was presumed to have been done (the Crown being unable to prove that it was not), that Mr Din was being used as a contractor when in fact it was Mr Faiva and that this dishonestly disguised from the Council the true nature of what was being done. Mr Tennet submitted that, in these circumstances, the Judge had essentially amended the indictment without allowing the defendants the opportunity to call evidence if they wished or otherwise tailor their case.
Mr Dickey did not accept Mr Tennet’s characterisation of the Crown case. Although he accepted that the primary basis on which the Crown invited the inference of dishonesty was the proven instances in which work had not been undertaken, he submitted that the Crown had also advanced its case on the basis that Mr Maharaj had dishonestly failed to follow the correct procurement procedure and that the invoices were fraudulent in that they conveyed that the work had been done by Mr Din when it had not.
The opening clearly conveyed that the essence of the Crown case was that the work was not done. This was said at least four times. Later, after describing the process by which the invoices had been produced and submitted Mr Dickey said that “the Crown case is that Mr Faiva wasn’t actually doing the work, no-one was”. Mr Dickey did refer to invoiced work having been done to a minor extent but in circumstances where it was done by another contractor, not Mr Faiva.
However, Mr Dickey also referred in opening to the Council’s procurement policy. It was clear from the description of the scheme that the Crown case rested, not only on the fact that no work had been done, but also on the fact the invoices were not properly authorised. Mr Dickey also referred to other evidence such as the absence of any emails between Mr Maharaj and Mr Din about the contracts, which tended to suggest that the invoices were not legitimate.
In his closing submissions Mr Dickey gave a brief summary of the Crown case that included the following:
In any event even if Mr Faiva was involved the invoices are not his. They have been created in the name of S Din and Mr Din has accepted that he created invoices for work which he did not do, did not subcontract out, did not verify and did not have any involvement in …
… This isn’t a test of whether there is or isn’t a Faiva, Ricky Faiva work gang. It’s a case of whether the Din invoices were fraudulent.
(Emphasis added.)
In his closing for Mr Maharaj, Mr Bioletti focused entirely on the question whether the work had actually been done and whether the Crown could prove that it had not. He did not address the issue raised very clearly by Mr Dickey’s closing that the invoices were to be regarded as fraudulent even if Mr Faiva had done the work. In fairness to Mr Bioletti, he was not in a position to advance an effective response to that assertion.
We are satisfied that, whilst the Crown did strongly assert that Mr Faiva had not done any of the work, it was equally clear that its case did not depend on that assertion being right. To a significant extent its case rested upon the dishonest production of fraudulent invoices to the Council without more.
Further, Mr Tennet’s suggestion that not being able to exclude the possibility of the work having been done equates to presuming the work had been done is not correct. The Crown ran a circumstantial case against Mr Maharaj and the Judge’s inability to exclude the possibility that the work had been done did no more than remove one piece of circumstantial evidence. It did not preclude the Judge finding, on the totality of the remaining evidence, that there had been a dishonest use of the documents.
We must add that, even if the Crown case had not been clearly put in that way, there is no real prospect of the outcome having been any different. Although Mr Tennet claimed that Mr Maharaj’s case could have been tailored differently, he did not suggest how that might have been done.
Consideration of dishonesty and claim of right
The Judge correctly identified the respective elements of intent to defraud and dishonesty without claim of right at the outset of his decision. However, Mr Tennet submitted that he failed to adequately consider this aspect once he had made relevant factual findings. In particular Mr Tennet submitted that, having found he could not exclude the possibility of the work having been done, the Judge failed to properly consider the elements of dishonesty against that finding.
We do not accept this submission. The Judge rejected Mr Maharaj’s “self‑serving exculpatory explanation” of having kept the monies and used them to pay Mr Faiva and his workmen.[27] At least one reason for this rejection was that Mr Maharaj’s personal circumstances had shown a significant improvement to his financial position through the renovations to his house. The Judge said of Mr Maharaj:[28]
… the invoices were documents used by the accused in the way already described and were used dishonestly and without claim of right. They were used in the sense that the Council was misled into believing that Mr Din was a contractor, when he was not, and the contractor was in reality Mr Maharaj who was, on his account, instructing Mr Faiva to attend to the work with Mr Maharaj undertaking the paper work. Consequently the arrangement was entered into with the intention of disguising from the Council the true nature of what was occurring and neither man could have considered they had a claim of right or a belief that the act was lawful. Mr Maharaj had been under no misapprehension that his employer would not have countenanced the use of a fictitious contractor …
[27]Reasons for Verdict, above n 1, at [123].
[28]At [135].
Given that Mr Maharaj had always accepted that the invoices showed Mr Din to be the contractor when he was not, the Judge’s conclusion, having correctly identified the legal test, was inevitable. We do not accept that the reasons were inadequate or that there was any failure to deal with the specific elements.
Misdirection regarding Mr Faiva
Mr Tennet complained of “a substantial misdirection about the failure to mention Mr Faiva” and a misdirection in the form of “a finding about the Samoan crew that was adverse to Mr Maharaj”. We cannot see any substance in this complaint. The Judge was entitled to take into account the assertions Mr Maharaj made to the SFO regarding Mr Faiva and, ultimately, made findings that were favourable to Mr Maharaj by accepting the possibility of the “Island team” having done some of the work.
Failing to deal with crucial issues
Mr Tennet identified a number of matters that he submitted were important to Mr Maharaj’s defence and affected the Judge’s adverse finding but were not properly considered. Mr Tennet acknowledged that some of these issues overlapped with matters already raised. These were the failure to deal with witnesses called by Mr Din, namely Messrs Buchanan, Packington-Hall, Whitley, Somerville and Aicken.
We do not see any substance in this ground. The evidence of Mr Somerville and Dr Packington-Hall was referred to and taken into account in the Judge’s finding that he could not exclude the possibility of work having been done, including the Verran’s Corner site identified by Mr Tennet. The authority to spend on rubbish clearance similarly was covered by Mr Somerville but ultimately irrelevant because the Judge found that he could not exclude the possibility of rubbish collection having been undertaken. Likewise, Mr Packington-Hall’s evidence regarding topsoiling work was referred to and the Judge found that he could not exclude the possibility of such work having been done. The evidence of previous managers, Mr Glanfield and Mr Raven were referred to in relation to the approval of work done by Mr Din.
Mr Tennet also submitted that it was open to the Judge to draw an inference from the fact that the Din invoices were checked and that the Din invoices were visible within the system and could have been inspected by management. The Judge did refer to Mr Glanfield’s and Mr Raven’s evidence but, plainly, unless they were actually aware of the true position these facts could not have assisted Mr Maharaj. Nor could the lack of concealment of the invoices within the Council’s system have affected the outcome.
The last point was the contradiction by a witness, Mr Moir, of the central Crown witness, Mr Swanepoel, relating to Mr Maharaj having exceeded his authority in relation to minor works by the preferred contractor, Fulton Hogan. Mr Tennet submitted that Mr Moir’s evidence showed that there was not a complete exclusivity in favour of Fulton Hogan. Mr Moir gave evidence that the contract with Fulton Hogan was not an exclusive contract. However, that did not actually contradict what Mr Swanepoel had said; Mr Swanepoel had described Fulton Hogan as having preferred contractor status which meant if Fulton Hogan could undertake the work that was to be done then it would have the contract to do it but that other contractors could be engaged if Fulton Hogan was not available.
We conclude this section of our judgment by acknowledging the quality of Judge Gibson’s decision. His analysis of the relevant evidence was comprehensive and well reasoned. Mr Maharaj’s various grounds for challenging his conviction based on judicial error were plainly unsustainable.
A miscarriage of justice?
Almost all of the issues raised by Mr Maharaj have no substance. Those where there is a basis for complaint, such as Mr Bioletti not appreciating the significance of the quantity surveying evidence, could not have affected the outcome of the trial. The invoices were admittedly false and there was no doubt in relation to counts 5 and 8–11 that Mr Maharaj received money from the Council via Mr Din for work that was not done. Even in respect of counts 4, 6 and 7, where the Judge could not exclude the possibility of the work having been done, the position, at best, was that Mr Maharaj obtained a pecuniary advantage for Mr Faiva, which would still constitute a pecuniary advantage for the purposes of s 228(b).[29] The circumstantial evidence justified a finding that the money was more likely than not spent on the renovations and, although Mr Maharaj has made assertions to the contrary, he has not offered any evidence to support his claim.
[29]R v Rowley [2012] NZHC 1778.
For these reasons we are satisfied that there was no miscarriage of justice.
Appeal by Mr Maharaj against sentence
The Judge took a starting point of four years on the charges of using a document and six months on the charges of attempting to pervert the course of justice. From the provisional starting point of four and a half years the Judge allowed a discount of 20 months (37 per cent) for his previous good record, ill-health and commitment to pay reparation. The final sentence was two years ten months.
Though not specified, the sentence appears to have been imposed by way of concurrent sentences of two years six months on each charge of using a document and concurrent sentences of four months on each charge of attempting to pervert the course of justice, the two types of sentences cumulative on one another. There is no complaint regarding the sentence for attempting to pervert the course of justice. The other sentences are appealed on the grounds that the Judge took too high a starting point and did not adequately consider the issue of parity with Mr Din.
Starting point
There are no guideline cases for dishonesty offences. However, there is assistance to be had from R v Varjan, which the Judge referred to:[30]
Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending; its magnitude and sophistication; the type of circumstances and number of victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[30]R v Varjan CA97/03, 26 June 2003 at [22].
In sentencing the Judge identified a number of factors he considered relevant to the assessment of culpability. These were the total value of the invoices ($829,652.25), the actual proven loss ($145,013.25), the fact that actual losses were likely to be higher than the proven figure but could not be quantified, the fact that the frauds spanned nearly ten years and the attendant high degree of premeditation and, finally, the abuse of trust Mr Maharaj enjoyed in his position with the Council.
The Judge took account of several cases with some factual similarities, namely R v Davis,[31] in which a starting point of four years was taken; R v Thomas,[32] in which a starting point of four years was taken; and Bates v Police[33] where a starting point of four years was also taken. Of these, both R v Thomas and Bates v Police involved significantly higher amounts of proved losses than in the present case.
[31]Affirmed in R v Davis [2009] NZCA 26.
[32]R v Thomas DC Auckland CRI-2008-005-15786, 17 October 2008; affirmed in Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009.
[33]Bates v Police [2013] NZHC 186.
Mr Tennet submitted that basing the starting point, in part, on the proven loss figure of $157,763.25 was incorrect because full reparation had been made for that level of loss. The value of the invoices did not assist in setting the penalty. However, as Mr Tennet agreed, the level of loss is only one of the relevant factors to be taken into account and payment of reparation was recognised in the discount given for that factor. We consider that Mr Maharaj’s conduct represented a sustained effort to defraud his employer and for those occupying positions of trust of the kind Mr Maharaj occupied, there is a significant deterrence factor to be considered in sentencing. The starting point was within the range available to the Judge.
Disparity
Mr Tennet submitted that the sentence was manifestly excessive because of the disparity between the sentences imposed on Mr Maharaj and that imposed on Mr Din. However, that ground is no longer available to Mr Maharaj given our conclusion that Mr Din’s appeal against conviction on these charges should be allowed.
Appeal by Mr Din
Mr Din is close to completing the sentence of home detention imposed. He maintains his appeal against conviction because of the ongoing effect it will have on him.
Mr Wicks submitted that it was obvious from Mr Din’s SFO interview that his defence turned on lack of dishonest intent and claim of right, rather than whether the work had actually been done and that Mr Sharrock had failed to properly consider this defence and advise Mr Din on it. Mr Din’s appeal is centred primarily on assertions of errors by his trial counsel, Mr Sharrock, to advance that defence. In particular he is said to have failed to obtain instructions and prepare for trial and adequately advise Mr Din regarding whether he should give evidence or not.
There is a third complaint of failing to call a forensic accountant to give evidence. However, there is no substance to that complaint and we need only mention it briefly. Mr Din knowingly claimed expenditure based on income figures that included the money he had received from Mr Maharaj. The Crown called Mr Din’s own accountant, Mr Sharma, who confirmed that. Mr Whitley was called to give evidence for Mr Din but could not offer any helpful explanation. Although Mr Din complains that Mr Sharrock should have called a more effective forensic accountant, Mr Wicks was unable to identify what that person could have said that might have assisted Mr Din.
Instructions and preparation for trial
After Mr Din was charged in 2011 he made inquiries regarding representation. He obtained a quote from a criminal barrister, which he could not afford. He applied unsuccessfully for legal aid. Eventually he engaged Mr Sharrock. It seems that this was Mr Maharaj’s suggestion; Mr Sharrock had been acting for Mr Maharaj in the civil proceedings brought by the Council. Under cross‑examination by Mr Wicks, Mr Sharrock accepted that he was inexperienced in acting as counsel in serious criminal trials, most of his experience having been in civil litigation.
On Mr Din’s account he visited Mr Sharrock’s office only once, to deliver the disclosure documents previously received from the Crown and to sign a document confirming Mr Sharrock’s instructions. Mr Din also said that he had two telephone calls from Mr Sharrock before the trial. However, there was no discussion of the circumstances of the alleged offending or of the nature of Mr Din’s defence, apart from the need for a forensic accountant and Mr Sharrock’s advice that Mr Din engage Mr Whitley. He said that when he rang Mr Sharrock to discuss matters he was told that Mr Sharrock was the lawyer and that Mr Din should let him deal with it.
In his affidavit Mr Sharrock rejected Mr Din’s assertion that he had not met with Mr Din apart from the one initial occasion in late 2012. To the contrary he said that he was in telephone contact with Mr Din at least fortnightly. In addition, he said that there was a meeting at which he explained his theory of the defence case to Mr Din, this being that the Crown could not prove that the work was not done and that Mr Din had not acted dishonestly and had a claim of right. He also discussed with Mr Din the suggestion that he and Mr Din work together with Mr Bioletti, with the cases run in parallel. According to Mr Sharrock, Mr Din agreed with this approach but was otherwise passive and reliant on Mr Sharrock’s advice.
In cross-examination, however, Mr Sharrock agreed that he only met Mr Din once before the trial and that was prior to the first scheduled trial date of 23 April 2012; that date was adjourned and the trial ultimately proceeded on 8 April 2013. He said that there were telephone calls every two to three weeks but, even on Mr Sharrock’s description of these calls, nothing of substance was ever discussed. Mr Sharrock did not take notes of any of the conversations.
Mr Sharrock said that there were meetings during the course of the trial at which strategy was discussed, including the issue of dishonest intention and claim of right. However, these meetings mostly occurred after court with Mr Maharaj, Mr Bioletti, Mr Din and Mr Sharrock all present. Mr Sharrock saw no significant difference between the defence positions of Mr Maharaj and Mr Din.
When cross-examined by Mr Wicks, Mr Sharrock agreed that from the earliest stage his opinion was that the case turned on whether the work had been done or not. He accepted that this view resulted in him not focusing on the lack of dishonesty or claim of right defences. He also said that, although he explored that issue with Mr Din at the initial meeting, he did not consider it had merit because Mr Din had taken no steps to contact the work gang or otherwise confirm that the work was being done. However, he did not explain how these defences might unfold at trial.
In our judgment Mr Sharrock failed to understand the essence of the defence available to Mr Din based on honest belief and claim of right. He failed to understand the factual and legal differences in the defences available to Messrs Din and Maharaj. Mr Sharrock was erroneously focused on the issue of whether the work had been done which, ultimately, could not have any significant effect on Mr Din’s defence, given Mr Din’s acknowledgement that he did not know and had never enquired as to whether the work had been done. Proof of that fact was irrelevant to Mr Din’s defence.
However, these failings only matter if the outcome was likely to have been different had Mr Sharrock presented the defence properly. Mr Sharrock did, in fact, address this issue in closing, referring to the SFO interview and submitting that Mr Din had accepted Mr Maharaj’s assurances that what he was doing was legal. He referred twice to the nature of the relationship between them as justifying that belief. However, that aspect was certainly not at the forefront of the closing submissions; the focus of the submissions was undoubtedly the evidence showing that the work had been done. Nor did Mr Sharrock emphasise the fact that an honest belief need not be reasonable.
The Judge recorded Mr Sharrock’s argument but did not accept it:[34]
Given the closeness of the two men, who were longstanding friends, and with Mr Din under an obligation to Mr Maharaj, it seems to me that it is possible that Mr Din chose to accept at face value Mr Maharaj’s assurances that the work was done, and that the invoicing had to be done that way because the Council would not accept an employee having an interest in the contracting arrangements. He said in his interview that he knew the arrangement was “silly” and “dodgy”. It is those remarks which lead me to conclude that even if he had not checked to see whether the work was being undertaken, and had simply accepted Mr Maharaj’s bland assurances that it was, he knew the Council was being misled by the invoicing arrangement. He turned a blind eye to it. A claim of right must relate to a belief in the possessory right to the relevant document, here the invoices. Both the accused knew Mr Din was not undertaking the work but were representing to the Council that he was, therefore the documents, in the nature of the invoices referred to, were being used dishonestly, a fact known to both men. That negates any element of genuine belief that the arrangement was a proper one.
[34]Reasons for Verdict, above n 1, at [127].
Although the defences of lack of dishonest intent and claim of right were the only realistic defences available to Mr Din, they could not be advanced effectively unless Mr Din gave evidence. It is apparent that the Judge was influenced in his conclusion by the admissions that Mr Din made to the SFO. A fact finder will be slow to make a finding of honest belief, particularly in circumstances such as these, without hearing from the man himself. Whether Mr Sharrock’s conduct of the trial could have altered the outcome therefore turns on whether Mr Din should have given evidence.
Was Mr Din properly advised regarding giving evidence?
It follows from our comments that Mr Din’s defence could only have been advanced effectively by Mr Din giving evidence. Mr Din maintained that he was not advised as to whether he should give evidence or not. But Mr Sharrock maintained that this was discussed. He said that he consulted other criminal barristers on the matter but considered that Mr Din had a sound defence without giving evidence. He said that he advised Mr Din not to give evidence and Mr Din accepted this advice.
Mr Sharrock’s reasons were that Mr Din was likely to pose a risk to himself if he gave evidence either through unwittingly deferring to Mr Maharaj’s position as a result of his being beholden to Mr Maharaj or through being exposed to cross‑examination that would effectively fill gaps in the Crown case. No specific examples were given. Mr Sharrock also thought that while Mr Din could have tried to address and neutralise his remark to the SFO about the invoices being a “bit dodgy” giving evidence was unduly risky.
We are satisfied that Mr Sharrock, although inexperienced in criminal trials, did appreciate the importance of advising Mr Din on whether he should give evidence and that he advised against it. We find that Mr Din accepted that advice. The question, however, is whether Mr Sharrock’s assessment was right.
Mr Din was clear in cross-examination by Mr Dickey that his evidence before the Judge would have been the same as his statement to the SFO. On the basis of that statement Mr Din knew that he was invoicing the Council for work that he did not do. But he claimed to have believed Mr Maharaj’s assurances that it was legitimate to do so. As we have noted, Mr Din’s remarks to the SFO about the scheme being “dodgy” were the greatest barrier to this assertion. However, Mr Wicks did not accept that the remarks were actually an admission that when he issued the invoices, Mr Din knew that Mr Maharaj was not authorised to make that arrangement. Mr Wicks said that competent counsel would have addressed this issue.
Having reviewed the relevant extract from Mr Din’s statement to the SFO, we agree with Mr Wicks. Taken in isolation the “dodgy” comment is adverse. But we accept Mr Wicks’ submission that when the statement is read in its entirety it could be viewed as describing an initial suspicion which was allayed by Mr Maharaj’s assurances. Given the background to the relationship between the two men it would have been open to a fact-finder to accept that Mr Din acted honestly, albeit foolishly. Indeed, that is what the Judge intimated.
It is unnecessary for us to go further. We are satisfied that, as a result of Mr Sharrock’s material errors about the nature of the defence available to Mr Din and in advising him against giving evidence, Mr Din was deprived of a fair trial. This conclusion can only affect the convictions regarding the invoices (counts 1–11). There is no basis on which Mr Din could have asserted an honest belief that he was entitled to claim expenditure against the money he received from the Council (counts 12–18).
Result
Mr Maharaj’s appeal against conviction and sentence is dismissed.
Mr Din’s appeal against conviction on counts 1–11 is allowed. Those convictions are quashed. As he has almost served his sentence of home detention, we make no order for a retrial. His appeal against convictions on counts 12–18 is dismissed.
Solicitors:
Swarbrick Beck Mackinnon, Wellington for Appellant Din
Crown Law Office, Wellington for Respondent
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