Ede v R - [2010] NZCA 358

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Ede v R

Court of Appeal Wellington CA694/2008; [2010] NZCA 358
14 June; 6 August 2010
Chambers, Winkelmann and Fogarty JJ

Criminal practice and procedure – Fair trial – Jury direction – Judge’s duty to

put case to jury – Whether goes beyond summary of arguments where counsel performs poorly.

Mr Ede was a mortgage broker and director of finance companies. He provided some refinancing advice, indirectly, to two brothers who owned a farm and were struggling with the mortgage. To recover fees he believed were owing, he

purchased their mortgages for $208,000. After checking with his lawyer, he reached an agreement to sell the farm, exercising his power of mortgagee sale, for $220,000, a gross undervalue. The purchaser then agreed to sell the land to neighbours for $340,000, though this agreement was cancelled when title was not available. Ultimately, as part of an elaborate arrangement, the brothers
redeemed the mortgage for $267,000 and sold it to the neighbours for
$270,000. Mr Ede split the profit of about $50,000 with the original would-be
purchaser. The Crown alleged that Mr Ede and the purchaser had concocted a plan to eliminate the brothers’ equity and split it between themselves, which involved breaching Mr Ede’s duty to obtain the best price reasonably available.
Mr Ede was convicted by a jury of obtaining a document capable of being used to obtain a benefit, namely the sale and purchase agreement between his company and the purchaser. Mr Ede appealed, arguing that the Judge had misdirected the jury in a number of respects relating to the ingredients of dishonesty and as to the duties of mortgagees.

Held: Trial judges had a responsibility to ensure that the defence case was properly put to the jury; this responsibility was all the heavier in cases where the performance of defence counsel had been poor. The Judge had a duty to isolate and marshal the evidence for the Crown and defence on each issue. The Judge had failed properly to put to the jury factors suggesting that the sale price
was not dishonestly low and that Mr Ede could not have known he was acting dishonestly because he had relied on legal advice. The summing-up was also wrong in law on several issues (see [46], [47], [48], [55], [56]).

Result: Appeal allowed; new trial ordered.

Cases mentioned in judgment

B v R CA59/97, 30 July 1997.
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949, [1971]
2 All ER 633 (CA).

DownsviewNominees Ltd v First City Corporation Ltd [1993] 1 NZLR 513, [1993] AC 295 (PC).

Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321.

Macleod v R [2003] HCA 24, (2003) 214 CLR 230, (2003) 197 ALR 333.

Peters v R [1998] HCA 7, (1998) 192 CLR 493, (1998) 151 ALR 51. 5

R v Coombridge [1976] 2 NZLR 381 (CA).

R v Firth [1998] 1…

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

AGLC: Ede v R [2010] NZCA 358
Case: [2010] NZCA 358
Decision Date: 6 August 2010

CaseChat Overview and Summary

The appellant, Bryce Graeme Ede, appealed his conviction in the High Court before Judge and jury for obtaining, with intent to defraud, a document capable of being used to obtain a benefit. The trial judge had erred in the directions he gave concerning the elements of the offence encapsulated within the expression "with intent to defraud." The trial judge had failed to distinguish between whether the conduct of the kind in question should be categorised as dishonest and whether the mind of the particular accused was dishonest. The trial judge had not left it to the jury to decide whether Mr Ede's conduct was dishonest and whether Mr Ede knew or believed his conduct was dishonest. The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders