Goolsbee v The Queen
[2014] NZCA 148
•16 April 2014 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA629/2012 [2014] NZCA 148 |
| BETWEEN | HENRY ALFRED GOOLSBEE |
| AND | THE QUEEN |
| Hearing: | 13 March 2014 |
Court: | Wild, Goddard and Clifford JJ |
Counsel: | N J Sainsbury for Appellant |
Judgment: | 16 April 2014 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Introduction
The appellant, who represented himself, was tried before Judge Behrens and a jury in the Nelson District Court and found guilty on one charge of obtaining the sum of NZ$97,985 by deception.[1] Prior to trial the appellant had been successively assigned four different counsel on legal aid: this was over the 19 month period following his arrest in January 2011. His relationship with the last of these lawyers, Mr Riddoch, was terminated a fortnight before trial. Mr Riddoch was then appointed as amicus curiae to assist the Court. Although not within the traditional amicus role, Mr Riddoch also provided the appellant with a great deal of assistance throughout the trial.
[1]Crimes Act 1961, s 240.
Following conviction, the appellant was sentenced by Judge Behrens to two years and three months’ imprisonment.[2] He now appeals against conviction on the ground that the trial was unfair because his defence could not have been adequately conducted without the assistance of counsel.
[2]R v Goolsbee DC Nelson CRI-2011-042-201, 2 October 2012.
Two interrelated questions were posed on appeal:
(a)In all the circumstances of how the trial was undertaken, was it unfair?
(b)Did that make a difference to the outcome?
The Crown’s case at trial
The facts as presented by the prosecution at trial are encapsulated in the following extract from the submissions to us of Crown counsel:
5. The complainant met Mr Goolsbee in Melbourne in June 2010, when she went to his home to collect two couches she purchased from him in an on-line auction. The appellant (a US citizen) was preparing to move to New Zealand with his wife and children.
6. The complainant was very taken with the appellant's family, while he impressed her as a successful businessman, with humanitarian and environmental interests similar to her own. The appellant told her he was experiencing temporary financial difficulties after a factory he established in South Australia was sabotaged. He said he was going to New Zealand to pursue new business opportunities and to write a book he had been researching for a number of years. The complainant agreed to look after their two cats while they settled in New Zealand and had regular contact with them over the next few weeks before they moved. She purchased their car from them for AUD $3000 but gave them a further AUD $14,000 by way of a loan to help them set up in NZ. Once they arrived in Nelson, in early July, the complainant lent them another AUD $19,000 to enable them to buy a car.
7.Towards the end of that month, the complainant transferred a further $98,000 to the appellant's bank account. The Crown case was that she was persuaded to do so by false and deceptive representations made by the appellant in a series of emails sent to her. The complainant believed the money was to be used to print and publish 30,000 copies of the book the appellant was writing. She understood the imperative to act quickly was so the book would be printed in time to launch it at the Frankfurt Book Fair in October. She was told the money would be held in a dedicated bank account and not mixed with other funds. The appellant wrote about expected revenue within 60-120 days of publication and implied the complainant would double her money over time.
8.The appellant started spending the money immediately on receipt, withdrawing $70,000 in cash and spending additional amounts in shops in the Nelson area. In mid-August, two weeks after receiving the money, he took his family of five on a three month trip to Raratonga. They returned to New Zealand in early November 2010 and by the end of that month all the money was gone.
9. There was no evidence that any of the money was applied towards printing or publishing a book. When the appellant was interviewed by the police in January 2011, he stated the book was about 30% completed.
The defence case
The defence case was outlined as encompassing the following matters.
When the appellant and the complainant met the appellant had no knowledge of any so-called “vulnerability” on her part. They struck up a bond, promoted in part by a shared interest in environmental issues and common beliefs, which Mr Sainsbury described as “new age or mystical philosophies”. This interest was clearly evident in various emails exchanged between them.
Although the complainant had only just met the appellant and his family, within a matter of days she had presented them with AUD$14,000 in cash. This had not been requested in any way, but was a spontaneous gesture by the complainant.
Soon after the family moved to New Zealand the complainant provided a further AUD$19,000, by way of bank transfer, to enable the appellant’s family to purchase a car.
The appellant was not aware of the complainant's financial position but could reasonably have inferred from her unsolicited and spontaneous payments of significant sums of money to a family she had just met, that she had the means to invest.
The appellant at no time held himself out as being a "worldly and successful businessman". To the contrary he made it known to the complainant that he and his family were in difficult financial circumstances and under considerable stress due to a failed business venture.
Whatever business plans the appellant may have hoped to bring to fruition in New Zealand, the only plan of significance and relevance in terms of the complainant and the agreement they entered into, was his wish to complete the writing of his book and endeavour to have it published.
The complainant became interested in assisting the appellant with his writing and eventually agreed to make this possible by providing capital in the sum of NZ$97,985.
Before accepting this money the appellant tried to ensure that the complainant was not putting herself in a difficult financial position. He was unaware the sum of NZ$97,985 represented the significant proportion of money available to her from the sale of her home.
The arrangement was for a commercial entity to be formed, of which the complainant would be a part. That would become the vehicle for publishing the book to be written and any future books written by the appellant. Should the venture be successful, the complainant would recover her investment. For his part, the appellant was to concentrate on writing the book. Emails were exchanged about the setup of the business operation; that is, about the forming of a company for publishing and associated matters. While the timeframes given were possibly optimistic, the essence of the agreement was that the money could be used to enable the book to be completed and then published and promoted.
Given it was made clear the appellant was in financial difficulty, it was a legitimate use of the complainant’s money to support him and his family during the writing of the book and the appellant believed he had the right to use the money to support him and his family while he worked on the book, including taking his family to Rarotonga for three months.
The initial indicative timeframe had to be pushed back and this was without objection from the complainant.
It was not until the complainant sought legal advice from the St Kilda Legal Service in Melbourne about the setting up of a company, and was advised that the arrangements were fraudulent, that she changed her attitude to the project. The categorisation by her of a strict and limited agreement for the publication of the book within a set timetable was a reconstruction strongly influenced by the advice she received from the St Kilda Legal Service.
To summarise the defence position at trial, as Mr Sainsbury outlined it to us, the money was to capitalise a company to be set up as a vehicle for the appellant's book writing, rather than to fund the publication of the book within a strict timetable; and the complainant openly and knowingly entered into this arrangement, regardless of whether (in retrospect) it was a foolish decision, given her true financial position, of which the appellant was unaware.
The significant aspect was that, at the time the money was paid, the appellant believed it was a legitimate investment in his writing venture.
The appeal
The appellant’s argument
An unusual aspect of the appeal is that notwithstanding legal assistance was provided to the appellant by four consecutive counsel assigned to him on legal aid, a considered decision has been made not to file waivers of privilege from any of those counsel; nor to provide any affidavit evidence relevant to the breakdown in the appellant’s relationship with counsel. That decision was extended to also not providing a waiver of privilege or affidavit from Mr Riddoch in relation to the discharge of his role as amicus curiae during the trial. The appellant has also declined to consent to disclosure of his legal aid file to the Crown.
The single ground of appeal is that the trial was unfair because the defence could not have been adequately advanced without the assistance of counsel,[3] but the appeal is not founded on any breach of the appellant’s right to have legal representation at the trial.
[3]Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [80].
Mr Sainsbury submitted that particular aspects of the Crown case would have had an immediate appeal to the jury and a competently run defence had to confront and deal with those critical aspects through skilful cross‑examination and clear articulation of the essential aspects of the defence case. The appellant, he suggested, was not capable of achieving this and had not confronted these critical aspects sufficiently or in a competent manner.
The first aspect which Mr Sainsbury suggested had required skilful handling was the “extraordinary” decision by the complainant to hand over NZ$97,985 for investment in a venture, given her financial position. Mr Sainsbury said this gesture gave rise to the open inference that she must have somehow been convinced by the appellant to do so.
The next aspect, identified by Mr Sainsbury, was the emotional appeal to the jury of the complainant’s “vulnerability” and the implicit inference that the appellant had taken advantage of this.
Another aspect was the fact that the appellant and his family had spent all of the money provided by the complainant, most significantly on a three-month family trip to Rarotonga. Coupled with this was the fact that the book had not been completed by the time the relationship broke down and by the time police investigated.
Mr Sainsbury submitted that all of these factors gave the Crown the advantage of a simple proposition for the jury: “money paid, money spent and no book equals fraud”.
Mr Sainsbury said when the complainant came to give her evidence, it was critical she should have been carefully and skilfully cross-examined on the essentials of the defence case, in order to negate the Crown’s projection of her as a vulnerable person who had been taken advantage of by a worldly fraudster; and to at least raise a reasonable doubt about the Crown’s case. However, the appellant was manifestly incapable of conducting such a vital cross-examination and similarly incapable of articulating the defence theory to the jury in a way they would accept.
Particular instances of the appellant’s tactical naivety and legal ignorance were identified and highlighted by Mr Sainsbury. One example was an application the appellant made to call the complainant as a witness for the defence, following his cross-examination of the officer in charge of the case.
The appellant had put it to the officer that a file she found on his laptop was an outline for a book entitled “A Snowflake in Hell”. The appellant then produced a manuscript as an exhibit (Exhibit C), which he contended was the same as the document outline on his laptop. The officer was unable to confirm whether the document was the same as the file she had found on his laptop.
The appellant then sought to call the complainant as a witness, in order to question her about Exhibit C and the file on the laptop, to ascertain whether she could identify authorship.
Judge Behrens declined to permit the appellant’s application to call the complainant.[4] He found there had been no indication in any of the evidence that she was aware of either document; noted she had already been cross-examined by the appellant for about eight hours as a witness for the prosecution, during the course of which the appellant had not at any point referred her to a book entitled “A Snowflake in Hell”; and was of the view that any probative value would be outweighed by the risk that the trial would be unnecessarily prolonged.
[4]R v Goolsbee DC Nelson CRI-2011-042-201, 29 August 2012 (Ruling 3).
The Judge also noted, in his ruling, that although the documentation on the laptop and Exhibit C had a measure of duplication, there was no indication on either document as to its authorship.
Mr Sainsbury’s point on the matter was that this futile attempt to call the complainant as a witness for the defence was an illustration of the appellant’s lack of understanding of the rules of evidence and of the need to fully put all relevant matters in cross-examination, when he had the opportunity to do so. It also indicated a lack of understanding about the comparative tactical advantage of leading evidence and cross-examination of witnesses.
In the context of the case, the issue as to whether work was being done on a book was important; the appellant’s contention being that he had intended completing the book and publishing it, but that this was taking longer than he had anticipated or hoped. Compounding the appellant’s failure to put to the complainant the authorship of Exhibit C was his reference to himself as the author of the document in closing to the jury. The Judge was obliged in summing up to advise the jury that the appellant’s assertion that he was the author of Exhibit C was not evidence of the fact and they must disregard it.
Other aspects of tactical disadvantages and unfairness in the trial, referred to by Mr Sainsbury, were religious references and recitations by the appellant during his closing address and his propensity to be sidetracked by irrelevant issues during his cross-examination of the complainant. An example of the latter was his failure to make sufficient capital out of the earlier unsolicited payment of AUD$14,000 the complainant had made to assist the appellant and his family; and failure to back this up by reference to relevant emails in which the appellant had outlined his family’s financial plight.
Another example of the appellant’s ineptitude referred to by Mr Sainsbury, was his putting it to the complainant that the legal advice she had received from St Kilda Legal Service had influenced her in deciding she was the victim of a fraud. Mr Sainsbury questioned whether this was a sensible issue to have pursued in front of the jury.
Mr Sainsbury emphasised the significance of the email traffic between the appellant and the complainant as an important part of the defence case, a matter we shall refer to in more detail. Mr Sainsbury said it was apparent that not all of the emails were produced in evidence and another disadvantage for the appellant was his inability to produce on appeal, as relevant fresh evidence, any missing or further emails that had not featured during the trial.
The appellant’s decision not to give evidence at trial was another important factor. Mr Sainsbury suggested the simplest and most direct way for the appellant to have established he was genuinely working on a book, albeit more slowly than he had hoped, would have been to give evidence on that aspect. If the appellant had given evidence, he would have been able to produce various drafts and researches, and speak to the process by which he had undertaken this writing, and explain the time it was taking him. The appellant could also have made a clear statement as to his understanding of the purpose for which the NZ$97,985 was to be spent, and thereby rebuff the Crown’s contention that the money was only to be spent, once the book had been written, on the cost of publishing, and publicising and distributing it.
The Crown’s response
Ms Edwards submitted that the unusual approach taken on appeal, of not alleging any breach of the appellant’s right to legal representation but simply that the trial was unfair because the appellant’s defence could not have been adequately conducted without the assistance of counsel, was “potentially problematic”. She said to consider the fairness of the trial in such a vacuum would leave it open to any defendant to dispense with the services of counsel, or to make an informed choice to go to trial without a lawyer, and then seek to have any consequential conviction set aside on the basis of inability to adequately represent themselves.
She further submitted that, in any event, the issue did not arise in the circumstances of the appellant’s case, because he had presented his defence adequately. His lack of familiarity with the trial process and the rules of evidence had not hampered his ability to present his defence to the extent that the trial had been rendered unfair. Given the strength of the Crown’s case derived mainly from the appellant’s own emails and from documentary evidence that was difficult to explain (such as the bank statements and expenditure receipts), it was unlikely the outcome would have been any different had the appellant been represented.
The law
The relevant law is as set out by the Supreme Court in Condon v R.[5] In summarised form, the following are the considerations relevant to an assessment of trial fairness, where a defendant is unrepresented:
(a)the manner in which the accused through his or her own choice or conduct came to be unrepresented;
(b)the manner in which the Judge presided over the trial, especially whether the Judge explained the court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with rules of evidence;
(c)whether the accused had the benefit of guidance from a lawyer or amicus at any time prior to or during the trial;
(d)the personal characteristics of the appellant, such as level of intelligence and education, previous experience in a courtroom and ability to express him or herself clearly and sensibly in that setting;
(e)whether the case involved any difficult legal issues or had other complexities which might have benefited from analysis by a trained legal mind; and
(f)the nature of the Crown case and how effectively the appellant managed to convey the nature of the defence in cross-examination of Crown witnesses, examining defence witnesses, giving evidence and addressing submissions to the Court.
What were the representations upon which the complainant relied?
[5]Condon v R, above n 3, at [80]–[82].
The answer to this question lies in the exchanges of emails between the appellant and the complainant. The critical exchanges occurred between 21 July and 12 September 2010. An analysis follows.
On 21 July 2010, after referring to the family’s gratitude that the complainant had made the family’s move to New Zealand possible through her gifts of money, the appellant wrote:
The only way I can ever hope to repay the money though, is if we (you and I) agree to create a publishing company ASAP in which you own 80% and I own 20% with the “usual royalties”. …
I will send you a brief outline though of overall construct of the novel.
…
My goal is to publish the book within the next 120 days and get it physically and digitally distributed globally, …
On 24 July, the appellant reported by email to the complainant as follows:
I am still plodding along none-the-less and the skeleton of the book is rapidly taking shape as I flesh-out the characters and weave the plot and sub‑plots together… At present my royalty per book is over US$12 per book, so you can imagine what a mere 2,000 books per month would gross, much less if the novel reached the top 100 (and I am absolutely confident that this is achievable … as my current book continues to sell weekly with absolutely no promotion whatsoever!). At any rate, that figure (of royalty US$12 per book) doubles when we print 30,000 at a time. Reason being is that, at present my book is printed “on demand” and so, the printing company (a subsidiary of AMAZON) is taking the lion’s share of the profits. On the other hand, when we print 30,000 at a time, we take profits on both book printing, sales and full author’s royalties because I have removed three layers of middlemen.
Please let me know if you are still interested in subsidizing the effort to publish/publicize the books on an international scale as I must make a reservation at the printing house for a run, in order to be ready for the Frankfurt Int’l Book Show in Oct 2010. In order to print at the most economical rate I need to print at least 30,000 trade-paperback size books. This is the minimum amount to “seed the market” at a professional standard including all the book shows in Frankfurt, London, and the US, and to send copies to all the newspapers magazines and critics worldwide.
If you’re still in a position to assist in further financing of the publication of the books Part B and the Novel itself; I would like to begin organizing the legal structures that would govern and protect our mutual interests. But time is very tight.
It all begins in Frankfurt every year… if you make a BIG splash in October, then the commercial, point of sale launch begins in the Oct-Nov window for the Christmas market. … Hence we should launch a work of literary importance at this time as well (as I did with the first book in Nov 2008).
The timing is critical, as these are the ONLY professional windows of opportunity for the serious-minded within the publishing industry. I would hope, [complainant], that we can sort out the formation of a legal entity and “named imprint” asap, and getting all the ISBN’s assigned (and barcodes in place and be prepared to go to press in the last week of September (but I must make a reservation for printing immediately for this…). The majority of the inventory would be warehoused at the printer here in NZ (I have key contacts here …) followed by a quick 5,000 copies going to AMAZON’s warehouse by express int’l cargo and sampling of 300 copies would have to be sent to Frankfurt by air-express. Reservations for a booth at the Frankfurt show must be made immediately as well. This is a very ambitious schedule but it is achievable as I am already familiar with the procedures …
On 25 July 2010, the appellant wrote further, outlining two scenarios for printing and promoting the new books and enquiring of the complainant what maximum amount of capital she could immediately make available for the purpose. Specifically, the appellant referred to the costs of printing 30,000 copies and of alternatively printing 20,000 copies. He explained that these estimates were based on quotes that were out of date but, in order to get new quotes, “in regards to the actual cost of printing and shipping” he had to ask the complainant the “obvious question now, before I can proceed… and that is, ‘what is the maximum amount of capital immediately available to the enterprise?’”. This email, with its specific references to “the actual cost of printing and shipping”, is important in the context of the case. In it, the appellant conveyed a real sense of urgency. The two scenarios for funding the enterprise he outlined to her were:
In scenario [1] I’ve made a rough estimate of appx $96,000 for a run of 30,000 copies; and
in scenario [2] it would be appx $68,000; and
in both instances that’s assuming that I can get a good price-per-unit on such short notice.The appellant then continued as follows:
However, I can’t ask for quotes until I have an indication of the overall budget…
If either of the two figures mentioned above is too much, I will have to look at paring-down the total number of copies printed on the first run, but that’s where the big difference lies of course, in that, obviously, the larger the run, the less expensive the cost per unit is going to be …
Likewise, the upfront budget also determines the final dimensions that we have to choose from. Thereafter the dimensions affect the distribution channels available to our use. So, Will you kindly provide an indication of the actual amount of upfront funding that you would be prepared to use to capitalize the new publishing company of which we have spoken? Once I have that figure, I can begin to make decisions on the dimensions, paper quality, and size of the first printing, distribution channels, etc etc,
Thereafter we will use revenue from the first round of sales to pay for a second and third printing etc etc… As soon as I can request some quotes reflecting figures that are more current, I will be pleased to provide you with a more detailed proposal, including a proposed division of after tax profits as well as a repayment (of your capital) schedule and royalties schedule.
Hence, as soon as it is convenient for you to do so, please decide on and advise me of the amount of ready capital that we can use, and then I can transfer the details to an excel file with the general concept of production, distribution, targets and goals and a publicity and promotions campaign to reach those goals.
The complainant replied the next day, 26 July 2010, advising:
I have just over $100,000 left, but am supporting my daughter and her partner, so will need to hold on to some. I am looking for work, and so this should alleviate things a little for me. …
So the run of 20,000 copies will have to be the chosen one.
The complainant concluded her response by explaining that her health was still in a fragile state and, if acceptable, she would like to be the appellant’s “silent partner” in the enterprise, at least for a little while.
The appellant responded within hours, on the same date, saying:
I am glad you raised the issue of your level of involvement as a working partner vs a silent partner, as I was wondering if you would like to be involved as a publicist (online public relations agent). … It would be a paid position independent of the other revenue. …
However, I am also, all for you being the “silent type” [partner] … you are the majority capital-partner in this endeavour.
Whichever way you choose to play it on a day-to-day basis…, either one, or a combination of both; …
My objective is to have a trickle of cash-flow within 60 days after publication … and within 120 days we (You, Masami [Mr Goolsbee’s wife] and I) should have enough revenue steam [sic] to pay ourselves a moderate salary for promotion and publicity services …
I am moving forward under the assumption that the~ 80% ([complainant]) 20% (Masami & Alfred) shareholding is ok with you… until such time as your capital has been returned two-fold, at which time we will then go to a 50%/50% shareholding… and that I will be paid the same ratio/rate of royalties that I am currently receiving from the AMAZON.COM subsidiary that currently handles my fulfillment and distribution.
I am also, respectfully, assuming that you’ll want to make an electronic transfer of funds from bank A to bank B…
Please advise how you wish to proceed.
… I have an account here in NZ at the “National Bank of New Zealand” … Once I receive the 68K I will open a new dedicated account for those funds, so that it’s easier on the accounting side, and won’t mingle those funds with others.
The complainant responded by return, again on 26 July:
Dear Alfred and Masami
If we are going to “rock and roll” we need to do it with gusto! Therefore I have arranged for $98,000 to be transferred to your account, hopefully, by Wednesday.
On 28 July 2010, the appellant wrote to the complainant as follows:
… my one concern is that, if you were to send 90k+ as you mentioned in your previous email, I worry about your support during the next 90-120 days while we launch the books… are you sure about the amount…? we can squeak by on the 68k amount because I wouldn’t want you to be stressed even in the slightest during the launch period… the PR/Publicity can begin in about 6 weeks time I would estimate…
On 29 July 2010 the complainant’s advance of NZ$97,985 was received into the appellant’s bank account in Nelson and the bulk of it withdrawn in cash the next day.
On 16 August 2010, the appellant and his family left New Zealand and went to Rarotonga, where they stayed for three months. The complainant was not aware they had left New Zealand until 2 September 2010.
On 7 August 2010, the appellant wrote to the complainant advising her that the printers he had consulted were not prepared to guarantee finished production of the books on such short notice, and that it would be prudent to print elsewhere than in New Zealand, possibly the USA and Ireland. Again, his email focused on the central issue of printing 30,000 books. Specifically, the appellant said:
Printing 30,000 books still gets the better price (as opposed to 20k or 10k) HOWEVER, it may [be] more productive to invest more funds into promotional activities in a few targeted areas rather than producing 30k units in the first instance… I.e. pay a little more (70-90 cents) per book in a run of 10-20k units and fold the money NOT spent into insuring that a healthy PR and Publicity campaign is instituted. Then, a portion of the sales from the first 10k can be used to do a 30-50k imprint which will be well-received into a well-primed marketplace.
The following day, 8 August 2010, the appellant again wrote to the complainant:
… a Nov-Dec launch date is still targeted… only the Frankfurt Show is canceled due to the printing schedule… Hence the first Book Show would be the London Book Show in May 2011 (but Christmas launch 2010 remains critical; so that we won’t miss the July 2011 book sales [July is traditionally THE top selling month for fiction])…
On 10 August 2010, the appellant again wrote to the complainant, this time in uncharacteristically short form:
dear [complainant],
We you and i and masami have agreed to form the partnership as of 10:08 am New Zealand time…
On 2 September 2010, the appellant wrote further to the complainant as follows:
I will write you a long email in the next day or two, explaining what I have been up to since our last exchange
I am in the south pacific at present, not too far from French Polynesia…
After that, the complainant replied on 8 September:
Hello Alfred,
I trust that Masami and the children are all safe and well. Are they travelling with you or still in New Zealand? I would appreciate an update as soon as you have a spare moment. … my funds are nearly depleted and so I need to know when we would all be able to start benefiting from our planned partnership. Sooner rather than later I hope. Hope to hear from you soon.
Was the defence clearly before the jury?
The appellant did not give evidence at trial; nor did he call any witnesses for the defence. He had, however, given his explanation to the officer in charge in a videotaped interview in January 2011 and this was played to the jury. The appellant’s explanation in his interview, and again at trial, was that his expenditure of the money was ultimately to do with the publication of the book and it had been agreed with the complainant that she was providing the money for he and his family’s living expenses while the book was being written. The appellant said he had gone to Rarotonga with his family to build a skeleton of the book, which at the time was not begun. However, by the time of his police interview, the book was 30 per cent written. The manuscript of this was the document produced as Exhibit C, which the appellant claimed was the same as the outline of the book “A Snowflake in Hell” in the folder on his laptop.
The defence theory of the case was clearly evident in the appellant’s lengthy cross‑examination of the complainant, in his cross-examination of the officer in charge, and from his closing address to the jury. The essence of his defence was the reasonable possibility that the agreement between him and the complainant was for a publicity and publishing company to be incorporated, which would remunerate him as its manager and pay him a salary while he wrote the proposed book. The company was never formally incorporated because the complainant had intended the money she advanced to be a personal loan and wished to remain a “silent partner”. Also, she had never provided the information necessary to incorporate the company.
When cross-examining the complainant, the appellant consistently put it to her that there was a distinction between providing capital for a new publishing company and providing funding for the printing, publication and distribution of the proposed book. In the context of the case, this seems to have been a distinction without a difference. It was certainly a distinction that escaped the complainant, as is abundantly clear from her answers.
By way of example, and with the assistance of the Judge, Mr Goolsbee’s theory that the money was for a company, rather than for the production of the book which the company was to publish, is evident in the following example extracts from his lengthy cross-examination of the complainant:
CROSS-EXAMINATION: MR GOOLSBEE
Q.… we’re looking at an email of the 7th of August, around 12.03 pm, Saturday, its … the third line talking about the cost per book, the cost per book, “Pay a little more, 70 to 90 cents per book in a run of producing 30,000 units in the first instance,” oh sorry, “In a run of 10 to 20,000 units and fold the money not spent into ensuring that a healthy PR and publicity campaign is instituted,” …
Q.“Pay a little more (70 to 90 cents) per book in a run of 10 to 20K units and fold the money not spent into ensuring that a healthy PR and publicity campaign is instituted,” is that what the email says?
A.It does.
Q.Okay. So how much would it cost to print 30,000 books at 90 cents each?
A.I think that is a [moot] point considering that there was never ever a book printed.
Q.And we’re talking, sorry, are we not talking about intentions, is this case about our intentions?
…
Q.What do you understand that sentence to mean, [complainant]?
…
A.… I just assumed that you were just looking at different scenarios.
Q.Okay. So this scenario proposed in this one, if, do you agree it’s about paying a little more per book in a run of 10 to 20,000 units, that is to say 70, 90 cents more per book, do you agree? That’s what we’re talking about –
A.Well apparently yes, yes.
…
Q.And so how much would it cost to print 30,000 books at 90 cents each, roughly? …
Q.If we say $1 times 30,000 minus 10%.
Q.What I’m suggesting is that this was a clear indication that the overall budget included all of the activities that are required to publicise, promote, operate a company, and if we subtract this, and this, I’ll pose this as a question –
THE COURT:
Q.Do you accept that?
A.Um, Your Honour, this email was sent on the 7th of August. I transferred the money in July and the specific, um, use of that money was, I was told it was in a separate account and it was specifically being used for the publishing and printing of a book. All this, this, these emails are after that date. I have never, never changed my mind that the purpose for the money that I gave to Mr Goolsbee was for the printing and publishing of a book, and everything that is after the money was sent, um, to me is of no, it’s just a moot point.
Q.Well, the first question is, do you agree that that paragraph 3 is something that was sent to you?
A.Yes I do.
…
CROSS-EXAMINATION CONTINUES: MR GOOLSBEE
Q.So far, on the, on the various emails that we’ve looked at, we’ve discussed the formation of a company, we’ve discussed shareholding, we’ve discussed capital to be made available for the formation of a publicity and publishing company. Do you agree that we have just reviewed emails, all of which have clear and concise language that refer to the use of capital for the formation of a publicity and publishing company, or enterprise?
…
THE COURT:
Q.Mr Goolsbee is putting to you that you and he discussed the formation of a company. What do you say to that?
A.Um, Mr Goolsbee and I, um, he gave me two scenarios as to investing money and that is what I did. Scenario 1 was X amount of money to print and publish 30,000 copies, ah, 20,000 copies of a book and the second scenario was to print and publish 30,000, and that is, Your Honour, what I, um, have always believed that the agreement was.
Q.Well, did you and he discuss, that is probably by interchange of emails, the formation of a company?
A.In subsequent emails because he had offered me a paid position, um, he said that he and his wife and I would receive, um, a small salary after the printing and publication of the book, that is what I am assuming he is talking about.
CROSS EXAMINATION CONTINUES: MR GOOLSBEE
Q.Okay. I’ll back-track just for the sake of clarity, and bear with me just a moment please. …
…
Q.… “Therefore the dimensions affect the distribution channels available to our use so will you kindly provide an indication of the actual amount of up-front funding that you would be prepared to use to capitalise the new publishing company of which we have spoken.” …
…
Q.… “Capital a publishing company”?
…
A.Well the, the sentence following that says, “Once I have that figure I can begin to make decisions on the dimensions, quality of, paper quality and size of the first printing, distribution channels etc,” that is why I assumed that was about the decisions on the dimensions of the book, the paper quality, and the size of the first printing. That followed directly on from that sentence and so that was what I assumed that was meant –
…
A.… that was to do with the printing of the book.
Q.So do you agree that’s the point at which some misunderstanding may have arisen?
A.Well apparently it has.
…
THE COURT:
…
Q.So what did you understand it to mean by the use of the word “capitalise”?
A.I, I don’t understand.
Q.We’ll go back a bit, up-front funding that you would be prepared to use to capitalise. What did you understand that to mean?
A.Well, I didn’t have any funding to capitalise a, a company. I’d already given him all the money that I had to print and publish the books. I believed that Mr Goolsbee had income from the, um, the ventures that he told me that he had started in Victoria. That is why I believed that I would get back the money that I had loaned him.
Q.When did you send the money to him?
…
Q.So I suppose the question is, when you sent the money –
A.Yes.
Q.– what was your understanding of …
A.My understanding that it was in relation to, in scenario 1, “I’ve made a rough estimate of approximately $96,000 for a run of 30,000 copies, and in scenario 2 it would be approximately $68,000.” I chose scenario 1, which is the $96,000, which is the amount of money on the transfer, so that is what I believed I was transferring the money for, the, for –
Q.How was that money – how did you think that money was to be secured?
A.Um, Mr Goolsbee told me that it was to be placed in a separate account and was only to be used for the purpose that I sent it for.
Q.How was it to be repaid to you?
A.Um, I was told that it – I would receive, double my money back within a year, that I would have an ongoing paid position, um, and that I would be receiving royalties from the books and he would be printing further books.
The above extracts from the evidence are but an example of the defence, as it was clearly and lengthily put by the appellant.
Again, in his closing address, the appellant reiterated his defence, as follows:
One issue the prosecution has proven, by way of supplying the body of emails to you for your inspection, is that there was a great deal of discussion between [the complainant] and Alfred Goolsbee about the formation of the publicity agency and a publicity and publishing company.
The prosecution also has not proven to you beyond reasonable doubt that a publishing company which is a legal fiction, an entity in business terms, a publishing company cannot run itself, … someone has to run it, someone has to pay for all the related expenses … So in case you have any, any doubts or you’re wondering about that, why, as you deliberate, please think about the fact that the prosecution has not proven that a company can run itself. A human being, or human beings, must take action, and in this modern world we live in, taking action isn’t cheap. Okay so finally another issue, … another issue the prosecution has proven by way of supplying the body of emails is that [the complainant]’s final decision, after a rather long wait on my part, and I, and I’d like to add a very patient wait, as you go through the emails …
[The complainant]’s final decision was that she wanted funds loaned to me to be ultimately represented as a personal loan. You’ll find that at the very end of the emails and I think you recall her mentioning it, that it was on the advice of her legal aide that all those emails towards the end were written, so how could I possibly have provided share certificates, which she asked for, if she’s never provided me the critical personal information required by the Companies Office to put the shares into her name? So please consider that carefully as well.
… the issue of a legal, a legal point that’s referred to as claim of right … I believe, to the best of my knowledge, at the material time that when [the complainant] transferred funds to me, she did that as confirmation of her will and intent to form a publicity and publishing company with me, and I think the emails speak clearly to this point. …
… In all fairness. I believe that [the complainant] had agreed to form a company with me that had been clearly articulated and defined by the exchange of emails.
… The defence submits – that’s me – that Alfred Goolsbee accepted the $98,000 as legal tender because he believed that [the complainant] had agreed to form a publicity and publishing company.
… [the prosecutor] has not proven that people who are involved in setting up a company, and writing a book, he has not proven that those people are not entitled to a salary and to a reasonable wage, and he has not proven that the balance of funds was inappropriate to what you might find in any company in today’s world, a, a reasonably remunerated manager might received.
In summing up, the Judge outlined to the jury the defence case, as it had been variously put by the appellant, particularly in his lengthy cross-examination of the complainant and in his closing address. The main points made by the Judge in summarising the defence case were:
The emails showed an agreement to form a publicity and publishing company.
The prosecution had not proved the appellant had failed to deliver on this agreement.
Nor had the prosecution proved he intended to deceive the complainant.
The complainant’s final decision was that she wanted the funds lent to the appellant as a personal loan and that was what the jury could take from the emails.
The question trail distributed to the jury by the Judge succinctly covered the elements of the charge the jury had to find established beyond reasonable doubt. Four questions were framed, which the Judge took the jury carefully through, explaining each in the context of the trial along with the requirement to decide each on the evidence, and whether “the Crown has made you sure that [the appellant] did not believe he could use [the money] in … that way”. The four questions were:
Question 1Has the Crown made you sure that between 1 July 2010 and 30 July 2010 Mr Goolsbee obtained $97,985 from [the complainant]?
Question 2Has the Crown made you sure that Mr Goolsbee obtained that money by deception, namely his knowingly false representation that the money was to be used for the printing, publication, and distribution of a book that he was writing?
Question 3Has the Crown made you sure that the deception was intended by Mr Goolsbee to deceive [the complainant]?
Question 4Has the Crown made you sure that Mr Goolsbee did not believe that he had a right to own or possess the $97,995 [sic] for a purpose other than the printing, publication, and distribution of a book that he was writing?
In the end, the jury simply did not accept that there was any reasonable doubt that the complainant had transferred the NZ$97,985 to pay for the printing and publishing of 30,000 paperback copies of the appellant’s new book.
Discussion
Was the defence adequately before the jury?
In our view, the above examples from the appellant’s cross-examination, from his closing address and from the summing up (as well as his police interview) establish that the appellant’s defence was squarely articulated before the jury and well able to be understood by them. It was not a complicated defence; it turned primarily on the critical emails and the interpretation the appellant sought to place on them. It also turned on what the jury made of the appellant’s actions in withdrawing most of the NZ$97,985 in cash immediately on receiving it and his actions in leaving for Rarotonga very shortly afterward; and on the absence of any book or any publication arrangements having been made for publishing and distributing the proposed book.
Was the appellant disadvantaged by tactical naivety and lack of legal experience?
None of the instances of tactical naivety and legal ignorance identified and highlighted by Mr Sainsbury give rise to any concern on the part of this Court that the appellant’s trial was not fair or that he was disadvantaged in any respect by absence of legal qualification or experience. Not only was the appellant able to get his version of events clearly before the jury in a perfectly understandable form, he also received assistance from both Mr Riddoch and the Judge throughout the trial. Indeed, in his closing address, the appellant thanked not only Mr Riddoch and the Judge for their assistance to him, but also the prosecutor, Mr Webber.
Far from appearing to have been disadvantaged, the appellant was able to raise issues, in apparent ignorance, which counsel would not have been able to raise and thus he was able to ensure the jury at least heard about these matters. For instance, he produced the manuscript which became Exhibit C and was able to contend that this was the same as the outline of a book entitled “A Snowflake in Hell” found on his laptop. While the officer in charge was unable to confirm whether the manuscript and the outline on the laptop were the same, and there was no indication on either document as to authorship, the appellant nevertheless was able to make the jury aware of these matters without any evidential basis whatsoever. Mr Sainsbury’s point, that the appellant’s attempt to call the complainant as a witness for the defence in order to question her about Exhibit C and the outline on his laptop was “futile”, is open to a different interpretation.
Because of the stance adopted by the appellant on appeal it simply cannot be known what advice he received from Mr Riddoch during the trial about trial tactics, about what matters he could or should put to the complainant in cross‑examination; or about the rules relating to the leading of evidence on matters that had not been cross-examined on. Nor can it be known what advice the appellant received about the wisdom or otherwise of giving evidence himself at trial, either from Mr Riddoch or from any of his previous counsel. In short, this Court simply cannot know what legal advice and assistance the appellant received both prior to and during the trial.
No waivers of privilege or affidavit evidence
The considered decision not to file waivers of privilege from any of the four counsel assigned to the appellant; or from Mr Riddoch about his role as amicus; or to file any affidavit evidence in relation to the advice the appellant received is, as Ms Edwards submitted, “potentially problematic”. In the absence of knowing what advice the appellant received from previous counsel or from Mr Riddoch, this Court is being asked to consider the overall fairness of the trial in an evidentiary vacuum.
Considerations relevant to an assessment of trial fairness where a defendant is unrepresented, in the terms discussed by the Supreme Court in Condon v R, include the manner in which the appellant, through his own choosing or conduct, came to be unrepresented. The appellant has deliberately elected not to appraise this Court of the reasons for his choosing to be unrepresented, simply leaving it to the Court to consider the overall fairness of his trial without the benefit of that knowledge.
All that can be known is that it was the appellant’s own choice to go to trial unrepresented and that he was given every opportunity to be legally represented. He was also given the benefit of an amicus during the trial, who was already familiar with his case and (presumably) his approach to it.
The conduct of the trial
There is no doubt that the manner in which Judge Behrens presided over the appellant’s trial, including the numerous occasions on which he explained court procedures and evidential issues to the appellant and assisted by helping him to frame or re-frame questions to the complainant, minimised any disadvantage the appellant may have had in unfamiliarity with the trial process and the rules of evidence.
There were, in fact, no difficult legal issues or particular complexities in the case, as presented by the prosecution; and thus no particular disadvantage in any lack of legal training and experience.
Evidential sufficiency
The Crown’s case at trial was overwhelming. The unequivocal meaning of the representations by the appellant in his emails to the complainant could not realistically be refuted in the absence of some cogent evidence to the contrary. No such evidence was produced at trial and there has been no serious suggestion of any attempt or ability to produce any since. No more than vague assertions have been made about the possibility of further documentary evidence in the form of emails not produced at trial, as constituting admissible fresh evidence.
In any event, the times and dates recorded on the constant exchange of emails between the appellant and the complainant during the period immediately leading up to the transfer of the NZ$97,985 into the appellant’s bank account, some of them extremely lengthy and detailed, preclude the likelihood that any vital email is missing.
There was only one interpretation to be placed on the representations by the appellant in his emails – and that was that the money sought from and advanced by the complainant was for the purpose of printing, publishing and distributing 20,000 or 30,000 “trade-paperback size” copies of a book the appellant undertook to write in time for the book to be launched in October/November 2010. The complainant’s two emails of 26 July 2010 demonstrate that was clearly her understanding of the appellant’s representations. The first indicates that she chose the appellant’s scenario two – printing 20,000 copies at an approximate cost of $68,000. Her second email demonstrates that she changed her mind, and selected scenario one – 30,000 copies costing approximately $96,000.
The defence put forward by the appellant was two-part: that the money was advanced “to form a publicity and publishing company”; and to pay him “a salary and a reasonable wage” for “setting up a company and writing a book”.
The first limb of that defence is not at all inconsistent with the complainant’s understanding of the business arrangement as proposed by the appellant and accepted by her: rather, it is entirely consistent with her understanding. A reading of the emails evidences that a company with a 80 per cent/20 per cent shareholding was proposed as an appropriate vehicle for managing the printing, publishing and distribution of the book once it had been written; and for the handling and dissemination of royalties to be earned by the book, once they flowed in. That part the complainant understood. The immediate and primary purpose for which the NZ$97,985 was to be applied, however, was for “scenario [1]” – that is, to cover the cost of “appx $96,000 for a run of 30,000 copies”, with the funding to be held in “a new dedicated account for those funds” which the appellant was to open.
As to the second limb of the defence, not one of the emails contains any reference to the appellant being paid management fees for the company to be set up; and to support he and his family while he wrote the book. The only references to his being remunerated out of the business arrangement with the complainant were references to his being “paid the same ratio/rate of royalties that I am currently receiving from AMAZON.COM” and to he, his wife and the complainant being paid a salary out of the income stream to be generated by the sale of the book. Neither of these areas of remuneration could happen until the book had been written, published and was selling. As the appellant himself wrote:
My objective is to have a trickle of cash-flow within 60 days after publication … and within 120 days we (You, Masami and I) should have enough revenue steam [sic] to pay ourselves a moderate salary for promotion and publicity services …
The appellant’s withdrawal of the NZ$97,985 advanced by the complainant shortly after receipt of the money into his National Bank account on 29 July 2010, and his departure for Rarotonga two weeks later, were extremely telling and added considerable strength to the Crown’s theory that the appellant intended to deceive the complainant.
The day after the money was received in the appellant’s bank account, he transferred $90,000 of it into a National Bank online account and, on the same day, transferred $70,000 back into the first account. That $70,000 was then withdrawn in cash at a branch of the bank that same day. Of the remaining $20,000, some was withdrawn in cash and the remainder was transferred into a BNZ account in the appellant’s name.
There was no evidence of the appellant opening “a dedicated account” for the money, as he said he would.
A little over a fortnight later, on 16 August, and unbeknown to the complainant, the appellant left New Zealand for Rarotonga with his wife and children. The day after their arrival, the appellant opened two bank accounts with Westpac Rarotonga.
By the end of October 2010 there were no funds left in either the Rarotonga bank accounts or in the appellant’s National Bank bank accounts in New Zealand. As at 30 November 2010, the total balance of all his bank accounts was $308. The complainant’s NZ$97,985 had therefore been completely dissipated within four months, most of it expended on flights, accommodation, food and other expenses incurred by the appellant and his family. None of the money had been expended on the printing, publishing or distribution of the proposed book. Nor was there any book to show for the money. Even on the appellant’s own version of events, six months after the agreement to publish the book had been entered into, the book (if that is what Exhibit C was) was still only 30 per cent written.
The evidence also established that the representations the appellant made in emails about a current book of his continuing to sell weekly for royalties were also false.
Summary
In summary, there can be no concern that the appellant’s trial was unfair or that the verdict of the jury was unsafe in any respect.
Conclusion
The answer to the first interrelated question posed by the appellant: “in all the circumstances of how the trial was undertaken was it unfair” must be “No”.
It is unnecessary to answer the second interrelated question.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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