Down v R

Case [2011] NZCA 138 6 April 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA497/2010
[2011] NZCA 138

BETWEEN CAROL MARGARET DOWN
Appellant

AND THE QUEEN
Respondent

Hearing: 8 March 2011

Court: Chambers, Harrison and Courtney JJ

Counsel: A D Banbrook for Appellant
F R J Sinclair for Respondent

Judgment: 6 April 2011 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must present herself to the Warkworth Police Station by no later than noon on 8 April 2011 in order to resume her sentence of imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Carol Margaret Down was found guilty at trial on four charges of using a document with intent to obtain a pecuniary advantage dishonestly and without claim of right under s 228(b) of the Crimes Act 1961 and acquitted of one further such charge. She was sentenced by Judge Joyce QC to concurrent terms of one year 11 months imprisonment.[1] Ms Down appeals both the conviction and sentence.
[1]R v Down DC AucklandCRI-2009-004-7739, 16 July 2010.
The charges arose from five loan agreements entered into between UDC Finance Company Ltd and Cash for Scrap Ltd (CFS), of which Ms Down was the sole director and shareholder. The loans were obtained using false invoices. CFS was unable to repay the loans and of the total advances of $1.16m the loss to UDC was approximately $850,000.
Ms Down signed the loan documents but maintained that she did not know about the false invoices. CFS’ accountant, Raymond John Moorhead, who provided UDC with the false invoices, was convicted on the same five charges as Ms Down faced.
The grounds of appeal against conviction are that:
(a)The jury’s verdict was unreasonable because there was no or insufficient evidence to prove that Ms Down used any of the false invoices;
(b)The guilty verdicts returned on Counts 2-5 were inconsistent with the not guilty verdict returned on Count 1;
(c)There was a miscarriage of justice because an article published in the Herald on Sunday newspaper two days before the Judge summed up referred to the appellant’s previous convictions and her association with William Victor George Conway who also had convictions.
The grounds of appeal against sentence are that the Judge erred in:
(a)Taking too high a starting point;
(b)Refusing to impose a sentence of home detention.

Circumstances of the UDC loans

In 1999 the appellant was in a domestic relationship with William Conway, who was the director of Independent Demolitions Limited. That company was placed in liquidation in 1999 and Mr Conway was subsequently banned from being a company director for a period of four years.
CFS was incorporated in 2000. Its business was buying and selling scrap metal. Between 2000 and 2005 Ms Down executed various documents in her capacity as the sole director of CFS, including a security agreement with UDC. In addition, she gave a personal guarantee for the company’s borrowings. In 2006 another company, Bairds Road Scrap Ltd (BRS) was incorporated with Mr Moorhead as its…

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 Down v R

Details

AGLC: Down v R [2011] NZCA 138
Case: [2011] NZCA 138
Decision Date: 6 April 2011

CaseChat Overview and Summary

Carol Margaret Down appeals against her conviction and sentence for fraud. The Court of Appeal dismissed the appeal. Ms Down was the sole director of Cash for Scrap Ltd, which obtained loans from UDC Finance Company Ltd using false invoices. She signed the loan documents but claims she was unaware of the false invoices. The appeal against conviction was that the jury's verdict was unreasonable due to insufficient evidence of Ms Down's knowledge and use of the false invoices. The Court found that there was sufficient evidence for the jury to reasonably conclude that Ms Down was a party to the fraud and knew of the false invoices, thus her signing of the loan documents amounted to indirect use of the invoices. The appeal against sentence argued that the starting point was too high and that home detention should have been imposed instead of imprisonment. The Court found that the starting point was appropriate given the seriousness of the offence and the need for deterrence and denunciation. The sentence of imprisonment was therefore upheld.

Orders