Din v R

Case [2014] NZCA 316 10 July 2014

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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 Appellant
AND	THE QUEEN Respondent

Hearing:	29 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	P F Wicks for Appellant Din C J Tennet for Appellant Maharaj B H Dickey and G H Vear for Respondent
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…

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 Din v R

Details

AGLC: Din v R [2014] NZCA 316
Case: [2014] NZCA 316
Decision Date: 10 July 2014 at 2.00 pm

CaseChat Overview and Summary

The case involved appeals by two men, Mr Maharaj and Mr Din, against their convictions and sentences for dishonesty offences. The appellants were convicted of using false invoices to defraud the North Shore City Council of nearly $850,000 over a period of nine years. Mr Maharaj was also convicted of attempting to pervert the course of justice by tampering with evidence. Mr Maharaj’s appeal against his convictions on counts 4, 6, 7 and 9–11 was allowed, and the convictions were quashed. There is no order for a retrial. The appeal against conviction on counts 12 to 18 in CA721/2013 was dismissed. The appeal against conviction and sentence in CA795/2013 was dismissed. The appeal against conviction on counts 1–11 in CA721/2013 was allowed and the convictions were quashed. As Mr Din has almost served his sentence of home detention, no order for a retrial is made. His appeal against convictions on counts 12–18 is dismissed. Mr Maharaj’s appeal against conviction was based on alleged errors by both trial counsel and the Judge which, either individually or cumulatively, resulted in a miscarriage of justice. His sentence appeal was 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. Mr Din’s appeal against conviction was based on alleged errors by trial counsel. 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 Court found that there was no error by Mr Bioletti in not calling witnesses. There was no evidence to support Mr Maharaj’s claim regarding the borrowings he claims as the source of finance for the renovations. The other points raised were without substance. The Court found that Mr Bioletti’s advice to Mr Maharaj not to give evidence was not an error. The Court concluded that the Judge correctly identified the respective elements of intent to defraud and dishonesty without claim of right at the outset of his decision. The Court found that Mr Maharaj’s various grounds for challenging his conviction based on judicial error were plainly unsustainable. The Court found that there was no miscarriage of justice. The Court found that the starting point was within the range available to the Judge. The Court found that Mr Din’s appeal against conviction was based on alleged errors by trial counsel, Mr Sharrock, to advance that defence. The Court found that Mr Sharrock failed to understand the essence of the defence available to Mr Din based on honest belief and claim of right. The Court found 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).

Orders