Holmes v The Queen
[2019] NZCA 330
•24 July 2019 at 2.15 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA178/2017 [2019] NZCA 330 |
| BETWEEN | BRYAN CRAIG HOLMES |
| AND | THE QUEEN |
| Hearing: | 10 April 2019 |
Court: | Miller, Collins and Toogood JJ |
Counsel: | Appellant in person |
Judgment: | 24 July 2019 at 2.15 pm |
JUDGMENT OF THE COURT
A The application for leave to appeal out of time is granted.
B The application to adduce further evidence is declined.
C The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Toogood J)
On 11 October 2016, after a two-day hearing in the District Court at Manukau on 30 and 31 August 2016, Judge JM Jelas found Bryan Holmes guilty of two charges under s 261 of the Companies Act 1993 (the Act), namely:
(a)a representative charge of failing between 18 October 2013 and 3 December 2013 to comply with notices given under s 261 of the Act requiring him to provide a liquidator with such information about the business, accounts, or affairs of Eastern Beach Holdings 2008 Limited (in liquidation) (Eastern Beach) as the liquidator requested; and
(b)a representative charge that, being a director of Eastern Beach, he failed to comply with notices given to him under s 261 of the Act requiring him to attend the offices of the liquidator to be examined on oath concerning the matters relating to that company.
The Judge found Mr Holmes not guilty on other charges of failing to comply with notices and failing to keep accounting records. On 7 November 2016, the Judge issued a reserved judgment setting out the reasons for her verdicts.[1] She said she found it was proved that Mr Holmes had received notices sent to him by the liquidator on 24 October 2013 and had failed to comply with them. On 29 November 2016, the Judge declined an application by Mr Holmes for a discharge without conviction under s 106 of the Sentencing Act 2002.[2] On each charge, she fined him $1,000 and ordered him to pay $130 in court costs.
[1]R v Holmes [2016] NZDC 18876 [Reserved judgment].
[2]R v Holmes [2016] NZDC 24299 [Sentencing notes] at [19].
Mr Holmes now appeals against his convictions and sentence. Mr Holmes initially elected trial by jury, but he was tried by Judge Jelas sitting alone after he withdrew his initial election. The right of appeal is to this Court.[3]
[3]See Criminal Procedure Act 2011, ss 230(b)(i) and (c) (as at 5 April 2017 when the appeal was filed); and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [19].
Mr Holmes filed and served his notices of appeal out of time; the delay being caused principally by his having initially filed his notices of appeal in the High Court. The Crown acknowledges that it has not suffered any prejudice as a result and does not oppose leave to appeal out of time. We grant leave to appeal accordingly.[4]
Applications for adjournment of the appeal hearing
[4]Criminal Procedure Act, s 231(3).
The notice of appeal was filed in this Court on 5 April 2017. The hearing was delayed because Mr Holmes had previously been granted adjournments of the hearing on numerous occasions until an adjournment application on 22 March 2019 that was opposed by the Crown and refused by Miller J.[5] Mr Holmes then indicated to the Court through the Registry that he proposed to rely on the papers he had filed.
[5]Holmes v R CA178/2017, 22 March 2019 (Minute of Miller J).
When this appeal was called for hearing on the morning notified to Mr Holmes and counsel, however, Mr Holmes appeared and sought an adjournment pending consideration of an application for legal aid, because he did not want to represent himself arguing the merits of his case. Mr Holmes had previously been declined legal aid because his financial position could not be ascertained on the basis of the information that he had submitted, but he had reapplied and was awaiting the outcome.
Mr Holmes accepted that his appeal was confined to factual issues and that he was not intending to rely on any alleged errors of law by the District Court Judge. In the circumstances, after taking some time to consider his position, Mr Holmes informed us that he did not wish to add to the submissions contained in the written material which he had filed and that he would be content for the Court to consider the merits of his appeal on the papers. Ms Hoskin confirmed that the Crown was content to rely on its written submissions also, and we reserved our decision for further consideration accordingly.
The grounds of appeal
Mr Holmes advances two grounds of appeal. First, he appeals against the guilty verdicts on the basis of what he submits is “fresh evidence” raising a doubt about the Crown’s proof that the notices sent on 24 October 2013 were received by him. Second, he challenges the Judge’s decision not to discharge him without conviction, giving rise to an appeal against both conviction and sentence.[6]
The facts
[6]Jackson v R, above n 3, at [16].
Mr Holmes was director of Eastern Beach. The company was placed into liquidation on 7 October 2013.
The liquidator with whom Mr Holmes had most contact was Mr Booth. Mr Booth first contacted Mr Holmes on 7 October 2013. Mr Holmes responded providing his email address and mobile phone number. Mr Booth emailed Mr Holmes on the same day, informing him of various legal consequences that follow a company being placed in liquidation and asking him to deliver a required list of records to the liquidator’s offices by 18 October 2013. Mr Booth concluded the email by saying that he would call Mr Holmes the following morning to discuss the matter.
That phone conversation did not take place. There was a following exchange of emails that day, 8 October 2013, in which Mr Booth scheduled a meeting for 18 October 2013 at 2 pm. He also asked Mr Holmes to email him various documentation.
The following day, 9 October 2013, Mr Booth sent Mr Holmes the first formal notices under s 261. These were sent to both Mr Holmes’ residential and email addresses. The first notice required Mr Holmes to attend the liquidator’s offices on 18 October 2013. The second requested him to deliver specified records on the same day. The notices also stated that Mr Holmes should contact the liquidator no later than noon on 16 October 2013 to make another arrangement if 18 October was inconvenient to him.
Mr Holmes emailed Mr Booth just over an hour before noon on 16 October 2013 advising that he could not attend the meeting on 18 October. He proposed a meeting on 29 October 2013 but advised that “in the meantime I will get the docs together for you”. Mr Booth replied that evening confirming the meeting on 29 October.
Mr Holmes did not deliver the specified documentation to the liquidator on 18 October 2013. Mr Booth sent him a further pair of s 261 notices by post and email on 24 October 2013 advising him of his failure to comply with the earlier notices.
The second pair of s 261 notices specified 4 November 2013 at 10 am as the proposed meeting time for examination on oath and providing documents and records. Again, the notice stated that if that time and date was inconvenient contact should be made by 1 November 2013 to make an alternative arrangement. Mr Holmes made no contact with Mr Booth prior to 4 November 2013 and did not attend Mr Booth’s offices for that meeting nor provide any documents or records.
On 22 November 2013 Mr Booth was contacted by Mr Holmes’ wife in respect of moneys mistakenly paid into the company’s account. Following that contact, a third pair of s 261 notices were sent to Mr Holmes (by post and email) on 25 November 2013. The notices specified a meeting time of 2 pm on 3 December 2013 and asked that an alternative meeting time should be arranged before noon on 27 November 2013.
Mr Holmes emailed Mr Booth just before 1 pm on 27 November advising that he could not attend the meeting the following day (despite the meeting being scheduled for that day) because he was out of Auckland and suggesting another meeting after 15 December 2013. Mr Booth did not reply to this email.
The District Court decision
In the District Court Mr Holmes did not contest that the notices were issued. He accepted that they had been sent. Rather, Mr Holmes argued that, at all times, he was willing and ready to meet with the liquidator and cooperate with their requests.
In respect of the first and third pair of notices, Judge Jelas held there was clear evidence that Mr Holmes made contact with the liquidator within or very close to the time required to request the meeting time be rescheduled. There was therefore no failure to comply with s 261.[7]
[7]Reserved judgment, above n 1, at [41].
However, the Judge noted that there was no such evidence in respect of the second pair of notices, sent on 24 October 2013.[8] Counsel for Mr Holmes argued that that in light of Mr Holmes’ diligent communication with Mr Booth regarding the first and third pair of notices, the Court could not be satisfied Mr Holmes had in fact received the second pair of notices.[9] This was rejected by the Judge:
[44] All of the s 261 notices were sent to Mr Holmes’ Eastern Beach residential address and to the email address Mr Holmes had provided to Mr Booth on 7 October 2013. The covering letter enclosing the second pair of s 261 notices bears two stamps. The first records the letter and notices were posted on 24 October 2013. The second stamp records the letter and notices were emailed on 24 October 2013. A similar set of stamps recording postage and emailing have been made on the covering letter enclosing the third pair of s 261 notices.
[45] Where there is evidence that the second pair of notices were sent by the two methods of post and email, and in the absence of any direct evidence that would put in issue or cast doubt on that evidence, I accept Mr Booth’s evidence that the second pair of s 261 notices were sent to Mr Holmes. Further, I infer from the addresses used (both residential and email) that Mr Holmes would have received those notices …
[46] … The same method of service was utilised for all three pairs of notices. There is no evidence that method of service would not have been successful for the second pair of notices. …
The appeal
The fresh evidence ground
[8]At [42].
[9]At [43].
Mr Holmes did not give evidence at trial, but he called a chartered accountant as a witness. None of the defence evidence given related to the two charges upon which Mr Holmes was convicted. The evidence Mr Holmes now seeks to adduce is intended to provide a response to the prosecution’s allegations on those charges. It is manifestly evidence that could have been given at the trial for the purpose of casting doubt on whether he received the notices sent on 24 October 2013.
In Lundy v R, the Judicial Committee of the Privy Council stated the overriding test for the ordering of a new trial based on the admission of fresh evidence as being whether it is in the interests of justice to admit the evidence.[10] The appellate court is required to ask whether the evidence:[11]
(a)is sufficiently fresh in that it could not with reasonable diligence have been called at trial;
(b)is sufficiently credible; and
(c)is cogent in the sense that it might reasonably have led to a different verdict.
[10]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[126].
[11]At [116] citing R v T (1988) 3 CRNZ 512 (CA) at 513.
Bearing in mind that the overriding consideration is whether there is such a risk of a miscarriage of justice as to justify ordering a new trial so that the evidence can be led, the courts do not adopt a pedantic approach to those questions. This Court has said that:[12]
… sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[12]R v Bain [2004] 1 NZLR 638 (CA) at [22] (emphasis added), approved in Lundy v R, above n 10, at [117].
Mr Holmes was represented at trial by experienced counsel. He did not give evidence, but he could have done so. He does not explain why he elected to remain silent at the trial. The evidence he wishes to advance is not fresh. An appellate court will not indulge an appellant who simply wishes to take an alternative approach to defending a charge after the approach taken at trial has failed. The application to set aside the convictions on the basis of fresh evidence fails at the first hurdle.
We do not need to say any more about the other two issues of credibility and cogency, except to endorse the submissions of Ms Hoskin, on behalf of the Crown, that the evidence of:
(a)the state of Mr Holmes’ email inbox in 2018;
(b)conversations held by Mr Holmes regarding his views on emails going missing; and
(c)the suggestion (and it is no more than that) that a third-party company providing email filtering services may have moved the liquidator’s notice “automatically” from the inbox to another folder,
could not in any circumstances have given rise to a reasonable doubt in the mind of the trial court.
We reject the “fresh evidence” ground of appeal accordingly and turn to the refusal of the Judge to discharge Mr Holmes without conviction under s 106 of the Sentencing Act.
The refusal of a discharge under s 106 of the Sentencing Act 2002 ground
In arguing the appeal, Mr Holmes does not identify any error of approach by Judge Jelas, but merely restates his arguments that the Judge should not have entered the convictions. Mr Holmes makes no attempt to address the scheme of ss 106 and 107. Those sections provide, relevantly:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
…
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
The Judge said, at [2] of her sentencing notes:[13]
Under the s 106 process which involves s 107 of the Act I am required to consider, firstly the gravity of the offence having regard to all circumstances, including relevant matters that have occurred since the prosecution was filed. Secondly I then need to consider the direct and indirect consequences that would result if a conviction were to be entered. Finally I must determine whether or not those consequences that you are likely to suffer would be a disproportional response to a conviction if one was entered. If it is a disproportionate response then the application should be granted.
[13]Sentencing notes, above n 2.
The Judge then identified the overall gravity of the offending as “moderately serious”. She said:[14]
There are stringent obligations on company directors when a company goes into liquidation to provide support to the liquidator in order to enable the liquidator to assess the true financial situation of the company. The financial situation of the company is not always apparent from the documents and this certainly occurred in this case where Eastern Beach Holdings Limited, while having contracted the rights with the telco companies to supply telecommunication services to others, was not the company that was being operated by you to supply those services. Some assistance was necessary in order to assist the liquidator in understanding the companies’ structures.
We find no fault in the Judge’s reasoning on that point.
[14]At [15].
The Judge then turned her attention to determining the direct or indirect consequences of the convictions and noted that Mr Holmes was concerned that a conviction under the Act might affect his ability to travel to Australia where his mother lives and where he had, apparently, set up a new business venture. The Judge noted that no information was provided to verify the new business interests and, further, that there was nothing in the material received from the Australian Consulate that assisted to provide the criteria the Australian immigration authorities might apply in Mr Holmes’s case.[15]
[15]At [16].
The Judge also referred to “a significant number” of criminal convictions for offences committed by Mr Holmes between 1989 and 1996, including an aggravated robbery.[16] The Judge noted that, in 1990, Mr Holmes had received a sentence of imprisonment of one year and three months for the aggravated robbery. Further, his criminal and traffic history shows that he has received over 30 concurrent sentences of imprisonment for dishonesty offences. The Judge noted that the most recent of that historic offending occurred over 20 years ago but expressed the reasonable view that it could be only speculative to attempt to infer what weight, if any, the Australian authorities might place on the more recent convictions under the Act that do not go to any obvious public safety issues. Counsel appearing for Mr Holmes responsibly acknowledged to the Court that the position on the immigration issue could not be put any higher than a possibility that it might affect Mr Holmes’s travel to Australia.[17]
[16]At [17].
[17]At [18].
The Judge concluded, properly in our view, that the likely consequences would not be out of all proportion to the gravity of the offending and declined the application.[18] We are satisfied that there was no error in the Judge’s approach and that her decision was correct.
[18]At [19].
Mr Holmes does not argue that the imposition of a fine of $1,000 and an order to pay costs of $130 for each of the two convictions was excessive.
Result
We grant leave to Mr Holmes to appeal out of time.
We refuse the application to adduce further evidence and we dismiss the appeals against conviction and sentence.
Solicitors:
Crown Law Office, Wellington for Respondent
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