Jones v The King

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA350/2023
[2025] NZCA 338

BETWEEN	ALAN VICTOR JONES Appellant
AND	THE KING Respondent

Hearing:	13 November 2024 (further submissions received 13 June 2025)
Court:	Courtney, Campbell and Cull JJ
Counsel:	M W Ryan and J G M Seton for Appellant K B Bell for Respondent
Judgment:	18 July 2025 at 2 pm

JUDGMENT OF THE COURT

A The application to set aside the notice of abandonment is granted.

B The application to adduce fresh evidence on appeal is granted.

C The appeal against conviction is allowed.

D The convictions and sentence are set aside.

E We direct that a judgment of acquittal be entered.

REASONS OF THE COURT

(Given by Cull J)

Introduction

Mr Jones was convicted following a jury trial of three charges of money laundering.[1] He was sentenced to 10 months’ home detention and ordered to pay $10,000 in reparation.[2] Mr Jones filed a conviction appeal following his trial but prior to sentencing, and subsequently abandoned the appeal after he was sentenced.
[1]Crimes Act 1961, s 243(2); maximum sentence seven years’ imprisonment.
[2]R v Jones [2024] NZDC 2175 [sentencing notes].
Mr Jones’ co‑accused, Mr Hunter, was subsequently tried separately and acquitted of money laundering charges in respect of the same transactions. This appeal arises as a result of Mr Hunter’s acquittal.
Mr Jones has applied for leave to withdraw the notice of abandonment, adduce fresh evidence and proceed with the appeal against his convictions, on the grounds that trial counsel error and improper jury research resulted in a miscarriage of justice.

Background

Procedural history

Mr Jones was the Chief Financial Officer of an investment company, Constance Capital Ltd (CCL), which received monies into its bank account as a result of a fraudulent business email scam. Mr Jones was charged with three charges of money laundering.
Mr Hunter was the director of CCL. He was separately charged with five charges of money laundering in respect of the same fraudulent scam. The Crown successfully applied for joinder of both sets of charges and the joint trial was scheduled to start in the week beginning 29 May 2023.
In the lead up to the trial, Mr Hunter filed an application for an adjournment of his trial, as he had undergone surgery and was medically unfit to attend Court. Mr Jones also sought an adjournment. On 23 May 2023, a telephone conference took place before Judge Gibson. At that point Mr Jones was unrepresented. The Judge adjourned Mr Hunter’s trial but directed Mr Jones’ trial to continue, advising him to seek legal advice. Mr Jones then instructed Mr Hayes as his trial counsel on 25 May 2023.

The facts

We consider the following background facts, taken from the oral verdict decision of Judge Gibson acquitting Mr Hunter of his charges,[3] best describe the roles of Mr Jones and Mr Hunter, CCL’s investment funding and the fraudulent business email scam. They provide the full factual context against which Mr Jones’ appeal can be viewed:
[3]R v Hunter [2024] NZDC 26490.
[2]       Mr Hunter was an entrepreneur … who dealt with investment opportunities. He, through his various companies, would identify opportunities in New Zealand for investment and would attempt to attract funds from persons interested in participating in the investment and use the vehicle of Constance Capital Limited … .
[3]       Mr Jones was the Chief Financial Officer for Mr Hunter’s enterprise. …
[4]       The start point is that a company, Pan Pac Forest Products Limited, was the victim of a relatively unsophisticated fraud that was perpetrated on it and was scammed in the sum of $411,021.87, which monies found their way to Constance Capital Limited’s bank account in three tranches, two on 11 September 2019, the first in the sum of $193,637.73, and the next $197,104.28, with the third tranche paid on 20 September 2019 in the sum of $20,279.86.
[5]       What happened was that a debt that Pan Pac Forest Products Limited was to have paid to a bulk haulage company in Masterton,
[Renalls] 2004 Limited, was intercepted through the fraud. Clearly, someone was aware of the invoices that had been generated by [Renalls] 2004 Limited to Pan Pac, the supplier, and persuaded someone at Pan Pac to change the bank account numbers, which were purportedly to be the new accounts for
[Renalls] 2004 Limited but were, in fact, fraudulent accounts, and the monies were intercepted in that way.
[6]       Those monies made their way to Constance Capital Limited and were paid into Constance Capital’s bank account by direct credit with the reference “Pan Pac”. There is nothing other than that identifying the source of the payment, and all three payments use the same identifying signature. Having been direct credited, they were, of course, cleared funds.
[7]       Now, it happens that Mr Hunter was at that time with Mr Jones engaged in an enterprise seeking funding for investing in New Zealand primary industries. A memorandum of understanding was produced in
the course of Mr Hunter’s evidence dated 19 June 2019 showing that Constance Capital Limited was attempting to invest in a livestock company and properties known as Te Mania at Greta Valley in North Canterbury.
[8]       Mr Hunter was soliciting investors at about the time and had identified an investor in Jakarta, a Dr Minarsand Rapa, who was proposing to invest a sum of money, initially approximately $500,000, which could, in the event the matter proceeded, be converted into shares, but was initially to be seen as a loan.
[9]       In the course of his evidence and in cross‑examination after being challenged on the point, he produced an agreement which he was hoping to have Dr Rapa sign when he went to Singapore to meet with Dr Rapa at the end of September and beginning of October, which recorded that Dr Rapa would lend NZ $400,000 to $500,000 for the purpose of acquiring a shareholding in the company that Constance Capital Limited was negotiating with.
[10]     The agreement noted that for some 18 months, Constance Capital Limited, through Mr Hunter, had been discussing with Dr Rapa and investigating two agricultural investments in New Zealand,
the Te Mania beef farming investment that I have already mentioned in North Canterbury, and a deer investment in South Canterbury. The letter recorded that Dr Rapa had expressed a definite interest to obtain a shareholding in one or both of those properties and to provide Constance Capital Limited with initial loan funds to advance the negotiations.
[11]     By that time, of course, Mr Hunter, through
Constance Capital Limited and other entities that were involved, including Mr Jones’ various entities, had undertaken a considerable amount of work and had incurred costs. And so, Mr Hunter was anxious that the transaction proceed so that the investment could succeed and that recovery of these costs and disbursements could be met through the funding that Dr Rapa was going to make available.
[12]     Dr Rapa told Mr Hunter that he was owed a sum of money from a banker in India, a Mr Abhijit Saha, that amounted to US $500,000, and that his contribution would come from those monies owed to him by Mr Saha.
[13]     On 25 August 2019, Mr Hunter received a text from Dr Rapa which confirmed that Abhijit Saha was Swifting (which is a payment system) $500,000 to CCL … on Wednesday, and that he wanted US $500,000 returned to his account on Monday.
[14]     So, I accept that Mr Hunter was expecting Dr Rapa’s investment funds to be paid in this way. As it happened, they were not paid within three days or so of 25 August, and monies were not received until 11 September.
[15]     Mr Hunter said that when he saw those monies come in, he understood that these were part of the monies that Dr Rapa was going to provide for the investment and for which he subsequently prepared, effectively, a
Heads of Agreement that he travelled up to Singapore to have Dr Rapa sign. It was intended that those Heads of Agreement, although described as a loan and share agreement, would be turned into a formal legal agreement once solicitors had been able to be involved.
[16]     However, when he got to Singapore at the end of September, he discovered that the monies that had been paid on 11 September and 20 September were the proceeds of an offence, namely the monies that had been, in effect, stolen from Pan Pac Forest Products Limited in the way that I have already described, and that Westpac Bank, which was still holding on behalf of Constance Capital Limited the balance of the monies so paid, then returned $201,899.22 to Pan Pac Forest Products Limited by way of a reversal of the transaction. Consequently, the matter did not proceed.

Mr Jones’ trial

The jury trial commenced on 30 May 2023 with closing addresses on 1 June 2023. The defence strategy was to call no evidence on behalf of Mr Jones but put the Crown to proof of its case. It follows that there was no evidence from or on behalf of Mr Jones.
By way of an agreed statement of facts, the jury received evidence from two people from Pan Pac Forest Products Ltd (Pan Pac) and the police officer who spoke to Pan Pac when the email scam was first discovered. The Crown then called
two witnesses. The first was Ms Skilton, a forensic accountant attached to the Financial Crime Unit of the Criminal Investigation Branch of the police. She had communicated with Mr Jones after he reported the scam to the police. The second was Detective Constable Hunter, the officer in charge of the investigation. He gave evidence of the overview of the investigation, the transactions that were relevant to the charges, and his interactions with Mr Jones.
The Crown case alleged that Mr Jones was guilty of money laundering, as he dealt with the funds “in his account” which were the proceeds of an offence. The Crown said that Mr Jones concealed the monies received, and that he knew or believed the monies were the proceeds of an offence or was reckless in allowing his bank account to be used to receive the funds, which he then distributed in accordance with his instructions.
Mr Jones’ defence was twofold. First, the payments he made were simply bill payments and there was no concealment or disguising of the monies received from Pan Pac. Secondly, he did not know that the monies he was transferring were criminal proceeds and nor was he reckless as to whether they were the proceeds from criminal activities.
The trial Judge directed the jury that the case largely focused on two issues: the issue of concealment and the issue of knowledge or recklessness.
Mr Jones was found guilty on all three charges of money laundering. Prior to sentencing, Mr Jones filed his own appeal against his convictions, having sought assistance from Mr Hayes, who continued to represent him for sentencing purposes. Mr Jones told Mr Hayes that he would withdraw the appeal if he did not receive a sentence of imprisonment.

Sentencing and the abandonment of appeal

After describing the companies affected by the business email scam, Judge Sharp sentenced Mr Jones on these facts:[4]
[7]       On Monday 30 September 2019 Pan Pac Forest Products Ltd received an email from [Renalls 2004 Ltd] informing them that they had been victims of business email compromise and had not recently changed banking provider. Pan Pac Forest Products Ltd made payments totalling $411,021.87 to Westpac account. [Renalls 2004 Ltd] received none of the money.
[8]       Mr Jones was alerted the funds in his account were the proceeds of crime by email by a member of the Fraud Investigation Team at Westpac. On Friday 4 October 2019 the bank initiated fraud reversal of $201,899.02
[— t]he balance [that] was left in the Westpac account on that day, leaving a nil balance. $209,035.09 is still outstanding. There were transfers from Mr Jones transferring the outstanding $209,035.09 into bank accounts both in New Zealand and overseas. …
[9]       After being alerted to the fraud by Westpac, Mr Jones made a complaint to the police. …
[4]Sentencing notes, above n 2.
The Judge described Mr Jones’ role in this money laundering as a “money mule”, someone who is recruited to transfer the proceeds of crime. This is either done in person, by mail or electronically in order to conceal the nature of the transfer to avoid detection.[5] Mr Jones was sentenced to 10 months’ home detention and ordered to pay $10,000 in reparation.[6]
[5]At [2]–[3].
[6]At [29].
Five days after sentencing, Mr Jones told Mr Hayes he was contemplating abandoning his appeal. Mr Hayes informed him that abandoning the appeal would mean that Mr Jones would be “giving up all [of his] appeal rights!” On 4 March 2024, Mr Jones filed a notice of abandonment of appeal, and wrote an email to Mr Hayes with his reason for discontinuing the appeal:
Whilst I have had the offer from two parties to fund the fight of this injustice I just don’t, at 75, have the energy to face another 1‑2 years battle to get justice.
I have now finally signed the attached notice & will complete the balance of my Home Detention.
In April 2024, Mr Hunter was acquitted of all five charges of money laundering at a Judge‑alone trial before Judge Gibson.[7] Mr Hunter gave evidence at his own trial and has provided an affidavit in support of Mr Jones’ appeal.
[7]R v Hunter, above n 3.
We deal first with Mr Jones’ applications to withdraw the notice of abandonment and to adduce fresh evidence on appeal.

Withdrawal of notice of abandonment

This Court’s decision in R v Cramp is the leading authority on setting aside notices of abandonment.[8] The Court held that an appeal court may set aside a notice of abandonment where:
(a)the abandonment is a nullity as it was not the result of the appellant’s deliberate and informed decision; or
(b)exceptional circumstances exist and it is in the interests of justice that the court set aside the notice of abandonment.[9]
[8]R v Cramp [2009] NZCA 90.
[9]At [26].
Mr Jones seeks to rely on the latter. To meet the threshold of exceptional circumstances, this Court in R v Bridgeman held that the following factors should be considered:
(a)the importance of finality in criminal cases;[10]
(b)the circumstances in which the notice of abandonment was given; and
(c)the necessity for the applicant seeking withdrawal to satisfy the court that the reasons for the application are of an exceptional nature.[11]
[10]See Marteley v R [2021] NZCA 636 at [37(b)].
[11]R v Bridgeman CA87/04, 10 November 2005 at [9], quoted in R v Cramp, above n 8, at [25].
When considering the interests of justice, this Court has added that this “will require a provisional assessment of the likely merit of any appeal”,[12] and that “[t]he nature of any advice the applicant has previously received concerning the merits of the proposed reinstated appeal” is relevant.[13]
[12]Hawkins v R [2015] NZCA 340 at [15].
[13]Marteley v R, above n 10, at [37(c)].
Mr Jones filed an affidavit explaining his reasons as to why he had abandoned his appeal:
37.Ultimately, I withdrew the appeal. I had a judicial teleconference and decided that I was over it. I had paid $82,000 in fees and did not want to proceed with the appeal any further. I had received a reasonable sentence and was content to serve it.
38.However, this changed with the news of Mr Hunter being acquitted.
39.I saw that Mr Hunter gave evidence at trial, setting out his response to the allegations, as well as his trial counsel cross‑examining the officer in charge on his efforts in investigating the money laundering allegations.
In his affidavit, Mr Hunter attributes his counsel’s cross‑examination of the officer in charge, Detective Constable Hunter, and his own evidence at trial, as being important to his successful defence.
Mr Ryan, for Mr Jones, submits that as Mr Jones was self‑represented, he did not have adequate legal advice at the time he filed a notice of abandonment when the initial appeal was filed, although he did have informal assistance from his trial counsel. While Mr Hayes informed Mr Jones by email that he was “giving up all [of his] appeal rights”, Mr Ryan says there is no evidence to suggest further discussion took place or that further advice was provided.
For the reasons we address with regard to the appeal against conviction and the risk of a miscarriage of justice, we consider that the threshold of exceptional circumstances is met and set the notice of abandonment aside.

Fresh evidence on appeal

As the grounds of appeal alleged counsel error, Mr Ryan called Mr Jones in support of his allegations. The Crown responded by calling Mr Hayes. Affidavits were filed by both Mr Jones and Mr Hayes, who were cross‑examined respectively by Ms Bell, for the Crown, and Mr Ryan, for the appellant. Mr Ryan further seeks to adduce an affidavit of Mr Hunter and the exculpatory evidence presented at Mr Hunter’s trial.
For an appeal involving allegations of trial counsel error, affidavits in relation to those allegations do not require leave.[14] In respect of further evidence which an appellant alleges should have been heard at trial if not for trial counsel error, this Court’s approach is to treat it as fresh if persuaded that counsel error explains its absence from the trial.[15] If the evidence is credible, it is cogent in that it may give rise to a miscarriage of justice. However, an appeal may succeed even though counsel’s conduct is found to be reasonable or the new evidence is not fresh. The overarching question is whether the verdict is unsafe.[16]
[14]Court of Appeal (Criminal) Rules 2001, r 12A; Mohamed v R [2023] NZCA 143 at [38]; and Witehira v R [2011] NZCA 255 at [36]–[40].
[15]Mohamed v R, above n 14, at [38], citing Loffley v R [2013] NZCA 579 at [58] and
[16]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [69]–[70].
For the reasons we come to next, we consider it is in the interests of justice to consider the evidence adduced at Mr Hunter’s trial and we granted leave accordingly.

Grounds of appeal against conviction

The grounds of appeal allege that trial counsel’s errors created a real risk that the verdicts were adversely affected and the resulting convictions are unsafe. Specifically, Mr Jones contends that trial counsel was in error by failing to apply for an adjournment of the trial, failing to call Mr Jones to give evidence despite receiving instructions to do so, failing to cross‑examine critical witnesses on their professed expertise and undermining the defendant’s right to silence in his jury address.
During his evidence at the hearing before us, Mr Jones raised a further ground of appeal, originally raised in his first notice of appeal. He claims that jury members did their own research into Mr Jones’ history and were influenced by his previous convictions of conspiring to defraud members of the public and using documents with the intention of obtaining a pecuniary benefit.
The ultimate question for this Court is whether the errors of counsel and/or jury research conducted during the trial, created a real risk that the guilty verdicts against Mr Jones were unsafe and a miscarriage of justice occurred.
We deal therefore with the appeal on the two principal grounds alleging trial counsel error and the conduct of improper jury research.

Trial counsel error

The Crown had expressly sought joinder of Mr Jones and Mr Hunter’s trials. When Mr Hunter’s ill health compromised his ability to stand trial, the Crown succeeded in its application to have Mr Jones tried on his own. The charges which both defendants faced arose out of the same facts and context but the focus and the evidence at each was vastly different.
We start our analysis by comparing the evidence and the Crown case in each trial, to assess the claims of trial counsel error and whether they affected the outcome of the trial.

Features of Mr Jones’ trial

There are three features of significance which emerge from Mr Jones’ trial. The first is the emphasis placed throughout the trial on the Westpac bank account being Mr Jones’ bank account, not CCL’s. Second, that Mr Jones was acting alone, not on instructions from Mr Hunter. Third, there was no background evidence or context as to why the large payment of funds into the CCL account was expected and believed to be legitimate.

“His” bank account

The Crown alleged that Mr Jones was reckless as to the source of funds deposited into his bank account, both pre‑trial in arguing its propensity application and at Mr Jones’ trial. Although the propensity decision records that the Westpac bank account “was in fact that of Mr Jones and Mr Hunter”,[17] the issue for trial was framed as:[18]
… whether or not [Mr Jones] was reckless in allowing his bank account to be used to receive an amount of money which he then partially distributed in accordance with instructions.
[17]R v Jones [2020] NZDC 23580 [propensity judgment] at [4].
[18]At [12] (emphasis added).
The propensity decision also records that the Crown argued it must prove Mr Jones “recognised a real possibility that the funds received into his account were the proceeds of an offence”.[19] While the words “his account” may be the terminology adopted by Judge and counsel as a shorthand reference to the jointly held Westpac account, it was repeated by the Crown and the defence at trial. In opening Mr Jones’ trial, the Crown referred to the “bank account that was controlled by” Mr Jones. The prosecutor invited the jury to draw the inference “that Mr Jones has laundered money and that he was at least reckless to the money passing through his account being the proceeds of a criminal offence”.[20] A similar reference was made in closing.[21]
[19]At [17] (emphasis added). The Judge also recorded Mr Jones’ claim that he was expecting a large international deposit into his account: at [18].
[20]Emphasis added.
[21]The Crown referred to amounts being “moved on to Mr Jones’ account”.
This terminology even made its way into the trial Judge’s summing up, where he said “you need to bear in mind that he was the Chief Financial Officer” and:[22]
Mr Hayes says that Mr Jones was telling the truth when he spoke with the police, why would he accept illegitimate funds into an account operated by his business? Why would funds be dispersed into an account associated with him?

No evidence of instructions

[22]Emphasis added.

In her decision on the Crown’s propensity application, Judge Aitken described the issue at trial as being whether Mr Jones was “reckless in allowing his bank account to be used to receive an amount of money which he then partially distributed in accordance with instructions”.[23] However, ultimately there was no evidence as to what instructions were given.
[23]Propensity judgment, above n 17, at [12].
In the memorandum of agreed facts admitted by consent of all parties, under the heading “Mr Jones dealt with the Money”, the memorandum states that “Mr Jones transferred the Money from the Westpac account to other bank accounts both in New Zealand and overseas”. There is no mention of Mr Hunter’s instructions that Mr Jones do so. Similarly, in the Crown and defence opening and closing addresses, no mention was made of Mr Jones’ acting under instruction.
Unsurprisingly, the trial Judge in her summing up made no reference to Mr Jones making payments on instructions. What the Judge did mention was the Crown’s case that Mr Jones was “a mule” and that the multiple transactions were made over a short period of time to disperse the money and to conceal or disguise its source.

No contextual evidence

The third factor was the absence of any evidence explaining or providing context to Mr Jones’ statement to the police that he was expecting significant funds from overseas.
The Crown’s theory, as repeated by the trial Judge, was that Mr Jones’ “explanation of expecting significant funds is not plausible, that there is no evidence of any contractual agreement or paperwork on what was to occur”.
Ms Skilton had emphasised in her evidence that in receiving large amounts of money, Mr Jones should have done due diligence on the source of the funds and kept adequate documentation “in relation to the money going into his account”. Following Ms Skilton’s evidence, the jury sent a question to the Judge, expressing their uncertainty about the level of due diligence required. The question was:
What due diligence would be expected to satisfy that the payments received are legitimate.
In response, after consulting with counsel, the Judge advised the jury that the question had been covered by Ms Skilton but that there was to be further evidence from another witness. The only other witness was Detective Constable Hunter, who did not in fact address the question.
The Crown in closing emphasised the absence of an adequate explanation from Mr Jones for the receipt of funds:
Now, if there is nothing to hide, if this was an innocent mistake, if there was a perfectly reasonable explanation, you might think then why on earth did Mr Jones not just provide the information he was asked for? We have heard and seen about multiple instances when Mr Jones was asked to provide information about the money he was expecting to support his story, to verify his claims.
What do we have, members of the jury? We have nothing. We have got a screenshot – so that’s on page 106 – and that shows a message from … Mr Hunter, and that suggests – it appears to say to Mr Jones that USD 500,000 was being sent on a Wednesday in August. Now there’s no evidence, of course, of this happening but as [Detective Constable] Hunter said yesterday, that’s on the 25^th of August, you can see in small print at the top of that screenshot. It is for a drastically different amount. I think the calculation we came to yesterday was over NZD $800,000 and it provides no proof of the arrangement anyway. As [Detective Constable] Hunter said to us, what he would have expected was some evidence of the arrangements, an agreement, a contract to confirm. And as I said earlier in this closing, Ms Skilton also referred to this absence of information when she said: “If you're in business and someone was going to pay you that amount of money, it would be inconceivable that there would be no documentation.”
The prosecutor then continued the same theme:
What I would say though is despite multiple opportunities to provide an explanation – and a clear explanation as to why the arrivals of money didn’t make Mr Jones suspicious – Mr Jones has been unable to provide any coherent or remotely plausible explanation and nor has he provided those asking for information with any information to credibly verify his claims.
Yesterday, Mr Hayes put a question to [Detective Constable] Hunter to suggest that Mr Jones had the right to remain silent, he doesn’t need to prove anything – and this, members of the jury, is quite right on arrest and in court. But you will recall, when Mr Jones is being asked for this information, he wasn’t being, he hadn’t been arrested, there wasn’t even a police investigation underway. These were questions asked of him by the Westpac fraud teams.
The lack of explanation was unfortunately emphasised by defence counsel. Mr Hayes in his closing address to the jury referred to the absence of any context by saying “we don’t have any evidence of what he might have been thinking in his mind”. In Mr Hayes’ concluding remarks, which emphasised that the jury had not heard from Mr Jones, he said:
You have seen Mr Jones sitting here, you haven’t heard from him of course, but you can form your own ideas about that. If you were going to conduct a money laundering transaction would you transfer the money into your own account?
It was not until sentencing that Mr Hayes submitted that Mr Jones was not the controlling mind and that Mr Hunter was in a more dominant role as far as the corporate structure was concerned. Although Judge Sharp noted that “Mr Hunter remains as yet presumed innocent”, the Judge appeared to accept this submission, finding “[a]s a consequence, there is a breach of trust but it could not be sheeted at the highest level.”[24]
[24]Sentencing notes, above n 2, at [19].
We now compare Mr Jones’ trial with Mr Hunter’s.

Mr Hunter’s trial

The Crown alleged that, notwithstanding Mr Hunter’s relationship with the investor Dr Rapa, Mr Hunter should have conducted anti‑money laundering checks on the source of the funds into the CCL account given their scale and failed to comply with the requirements of dealing with large transactions. The Crown pointed to the fact that the money was received almost two weeks after it was due, was less than what was expected by $350,000 and came in instalments when it was supposed to be one transaction. This, the Crown said, should have rung alarm bells. Further, the Crown asserted that the subsequent transactions out of CCL’s account and the lack of accompanying invoices were evidence of CCL and Mr Hunter trying to disguise the money laundering.
Mr Hunter gave evidence. He explained that CCL was investing funds in two farms in New Zealand. CCL required investors, and one of these was Dr Rapa, whom Mr Hunter had known for many years. Mr Hunter told Dr Rapa, who was based in Indonesia, that he needed about $400,000, and Dr Rapa told him that Mr Saha, based in India, owed Dr Rapa USD 500,000. Mr Hunter did not know Mr Saha. It was arranged that Mr Saha would send the money he owed Dr Rapa directly to the CCL bank account, and that this would pay for Dr Rapa’s investment. The money that was subsequently transferred to the CCL account (two transactions of $197,104.23 and $193,637.73) was presumed to be this investment.[25]
[25]Mr Hunter gave evidence that the third payment of $20,279.86 “went straight back” to Pan Pac as part of the fraud reversal transaction.
At his trial, Mr Hunter produced two exhibits in support of his evidence. These were:
(a)Exhibit A — a bundle of documents. These documents record CCL’s interest in investing in farms. There are also emails dated earlier than the transactions detailing plans to have Dr Rapa invest and recording that the first funding arrangements will commence in September.
(b)Exhibit B — a loan and share agreement. This document confirms that Dr Rapa will loan Mr Hunter between $400,000 to $500,000 in return for a shareholding on the farms. This letter was dated 1 October 2019; roughly three weeks after the funds first entered CCL’s account on 11 September and the day after the fraud was identified.
In his verdict decision, Judge Gibson framed the issue for determination as follows:[26]
[17] The issue, of course, is whether, when he received the funds in September 2019 and began to deal with [them] as he did by instructing Mr Jones shortly after to start paying accounts from those funds, he was aware that the monies so received from Pan Pac were the proceeds of a crime.
[26]R v Hunter, above n 3 (emphasis added).
After hearing from Mr Hunter, the Judge was satisfied that Mr Hunter was unaware that the fraud had been perpetrated on Pan Pac, or that the proceeds were a result of an offence committed in New Zealand or elsewhere. He concluded:[27]
[Mr Hunter] had nothing, to my mind, to indicate that was so, as to alert him to the need to be on inquiry. He did not disregard any warning signs. The payment came at approximately the time that he thought payment was coming. And he was dealing with Dr Rapa, whom he trusted.
[27]At [28].
Mr Hunter was acquitted on all charges.

Should Mr Jones’ trial have been adjourned?

Of the five appeal grounds raised, we consider that the principal issue is whether trial counsel erred in failing to seek an adjournment of Mr Jones’ trial to ensure that critical evidence was called in his defence.
At the pre‑hearing teleconference on 23 May 2023, Mr Jones filed a memorandum seeking an adjournment of his trial. He was unrepresented at the time and in his submission, he advised the Court that he had been attempting to instruct a lawyer, as his former lawyer had sought leave to withdraw. He also indicated that he was attempting to engage an expert in banking law to provide an expert opinion that this was not a case of money laundering but of theft by third parties, who were independent of Mr Jones.
More importantly, he submitted that he would rely “not only on [his] own evidence but also that of Mr Hunter and vi[ce] versa” and further:
I will not adequately be able to put my defence forward without the evidence of Mr Hunter before this Court.
He sought an adjournment to a date when both he and Mr Hunter were able to appear and have legal representation. Mr Jones’ application was declined but he was urged by the District Court Judge to obtain legal assistance, as the ultimate punishment could be one of incarceration. This gave Mr Jones one week to secure trial counsel before trial. As Mr Hayes had previously appeared informally on Mr Jones’ behalf at various call‑overs, Mr Jones formally instructed him on 25 May.
From the evidence, it appears that Mr Hayes did not have a copy of Mr Jones’ submission that he made for the adjournment telephone conference, although he acknowledged that he knew that Mr Jones’ application for an adjournment of the trial was unsuccessful. He took instructions from Mr Jones and received a set of documents from Mr Jones on the Sunday night before the trial on Tuesday.[28] Mr Hayes read the documents and formed the view that they were of little assistance to Mr Jones in his trial. Instead, he considered that the defence strategy should consist of putting the Crown to proof. The trial Judge in her jury directions confirmed that the defence case was that the Crown had failed to prove the charges beyond reasonable doubt.
[28]During cross‑examination, Mr Hayes said he did not receive some of the documents until during the trial. Mr Jones disputed this. Taking the appeal at its highest, we have proceeded on the basis that the relevant documents were provided to Mr Hayes on the Sunday.
The documents which Mr Jones provided to Mr Hayes were described as Exhibit A and were ultimately produced by Mr Hunter at his trial. As set out above, they consisted of the background of CCL’s interest in investing in farms, including emails recording details of plans to have Dr Rapa invest and that the first funding arrangement would commence in September. Exhibit B, a loan and share agreement confirmed that Dr Rapa would loan Mr Hunter $400,000 to $500,000 in return for a shareholding on the farms. This letter was dated 1 October 2019, three weeks after the funds first entered CCL’s account on 11 September and a day after the fraud was identified.
Mr Hunter’s explanation and the exhibits adduced by him in his trial went to the heart of Judge Gibson’s judgment acquitting Mr Hunter of money laundering. This is illustrated by the Judge’s view of the transaction:[29]
[23] The defendant has given an explanation, which is he had no reason to believe that the monies were anything other than the monies he expected to be received. He accepted they were not paid at the time indicated in the text message on 25 August 2019, but nothing, he said, was unusual in that respect in the business in which he was engaged. Trying to corral private investors into making payments, monies did not always come in on the dates expected or in the amounts expected; and so, there was nothing in that respect that alerted him to the fact that the monies may have been the proceeds of a crime. There was nothing in the name of the payer that alerted him to that. He expected monies in approximately that sum. That was his evidence.
[29]R v Hunter, above n 3, at [23].
Mr Hayes accepted that he did not turn his mind to seeking a further adjournment but proceeded to trial, without an adequate briefing on what evidence Mr Hunter could provide that might have helped Mr Jones’ case. There was no record of his attendances on Mr Jones or his advice. There was no brief of evidence for Mr Jones and nor was there any note of the significance of the Exhibit A documents for Mr Jones’ defence or for Mr Jones’ potentially giving evidence.
Having heard the evidence both of Mr Jones and of Mr Hayes in this appeal, we have reached the view that we cannot be satisfied Mr Hayes adequately grasped the defence case or understood what could have been presented to the Court by way of explaining Mr Jones’ role within the context of the CCL operation and the arrangements reached between the director of the company, Mr Hunter, and the investors, Mr Saha and Dr Rapa.
We acknowledge that counsel had barely five days between receiving instructions from Mr Jones and the commencement of the trial. Mr Hayes himself referred to having a short time in which to bring himself up to speed on the trial. However, the background evidence and explanation for the receipt of funds into CCL’s account was critical to Mr Jones’ defence.
Mr Hayes acknowledged to us that he was not aware that Mr Jones was acting under instruction from Mr Hunter, which explains why the jury did not hear any evidence that Mr Jones was acting on instructions from Mr Hunter. Nor was there any adequate explanation of why the receipt of funds into CCL’s account was not unexpected. It is plainly evident, reinforced by the short timeframe for trial preparation, that Mr Jones’ trial needed to be adjourned to enable Mr Hunter to give evidence and produce the documents in Exhibit A with a full explanation. As Mr Hunter deposes:
[Mr Jones’] argument for an adjournment was that we relied on each other for a defence. We were integral witnesses in each other’s cases.
…
… My defence and his were always the same: We were acting in line with standard business practices, and were victims of the same fraud that we were charged with.
We find the omission to seek an adjournment of Mr Jones’ trial, in order to advance the defence with evidence that Mr Jones believed was necessary, was a critical error. Without Mr Hunter’s explanation of the background and the finalisation of the agreement with Dr Rapa, there was no foundation for Mr Jones’ belief that the funds were legitimate. Nor was there an adequate explanation of Mr Jones’ role in the dispersal of the funds. Further, the absence of this evidence meant the focus of the Crown case against Mr Jones was that he was solely responsible for the receipt of the funds into his account rather than CCL’s account, and that he was acting alone.
As the evidence at Mr Hunter’s trial shows, Mr Jones was acting on Mr Hunter’s instructions; Mr Hunter had finalised the investment contract with Dr Rapa; Mr Hunter and Mr Jones believed the funds had come from Dr Rapa and were legitimate; and the payments Mr Jones made from the CCL account for outstanding expenses were made on instruction. The fact that the Crown had sought joinder of both trials emphasised the complementary roles of Mr Hunter and Mr Jones and that both were involved in the same transactions.
Fundamental to our conclusion of counsel error on this adjournment issue is the failure of counsel to advance the defence Mr Jones wished to pursue by calling not only Mr Hunter’s evidence but his own. We now consider Mr Jones’ election not to give evidence and the advice he received about it.

Should Mr Jones have given evidence?

We heard from both Mr Jones and Mr Hayes on this issue. Mr Jones claims that he wished to give evidence at the trial but was prevented from doing so by Mr Hayes. Mr Ryan points to the memorandum which Mr Jones filed seven days before the commencement of the trial when he was self‑represented, where he indicated that he would be giving evidence.
Mr Hayes told us that his theory of the case was that Mr Jones innocently received the money and there was no money laundering. His trial strategy was to put the Crown to proof. With that aim in mind, Mr Hayes told the Court that whether Mr Jones gave evidence was over to him, although he personally did not think he should. Mr Hayes disputes that he prevented Mr Jones from giving evidence.

Mr Hayes acknowledged that did not obtain written instructions from Mr Jones on his election not to give evidence but said that Mr Jones was initially concerned about giving evidence as he was nervous that he might say the wrong thing.
There were two factors under consideration. The first was Mr Jones’ previous fraud convictions. Mr Hayes confirmed that he considered Mr Jones’ previous fraud convictions were problematic, particularly if Mr Jones asserted that he acted honestly. He says he and Mr Jones discussed the issue again at the close of the Crown case but the ultimate decision as to whether Mr Jones gave evidence was always going be Mr Jones’ decision. Mr Hayes left him to make that final decision. However, Mr Hayes appears to have overlooked that Mr Jones’ previous convictions could only arise if Mr Jones put his character in issue.

Second, and as noted above at [61], on the Sunday night before the trial commenced on the following Tuesday morning, Mr Jones had forwarded Mr Hayes the Exhibit A documents and correspondence relating to the funds to be received by CCL. Mr Hayes advised Mr Jones against giving evidence because the evidence he wanted to introduce was, in his view, potentially prejudicial. Mr Hayes says Mr Jones agreed with him on this issue and determined not to give evidence. Mr Hayes accepted that he did not get these instructions in writing, nor did he take file notes of his advice or draft a potential brief of evidence.
As noted, Mr Hunter deposed that his and Mr Jones’ defence were the same: that they were acting in accordance with standard business practices and were victims of the same fraud. Mr Hunter gave evidence at his trial based on the Exhibit A and B documents he produced at trial and believed that his evidence was critical to his acquittal.
Without the benefit of hearing from Mr Hunter and the details about CCL, there was no basis for the jury in Mr Jones’ trial to be directed that Mr Jones had received instructions from Mr Hunter to pay accounts from the funds, as Judge Gibson found had happened in his decision acquitting Mr Hunter.[30] Judge Gibson was satisfied that Mr Hunter was unaware that the fraud had been perpetrated on Pan Pac or that the proceeds received into CCL’s account were the result of an offence committed in New Zealand or elsewhere.[31] Further, the Judge considered it was significant that a substantial amount of money was still retained in CCL’s bank account three to four weeks later, confirming that Mr Hunter was not aware that the money was the proceeds of an offence and that he therefore did not engage in a money laundering transaction.[32]
[30]At [17] and [19].
[31]At [23] and [28].
[32]At [31].
This Court has held that a failure to obtain signed instructions is not of itself enough to establish a miscarriage of justice.[33] However, the full explanation of Mr Hunter’s interactions with Mr Saha and Dr Rapa, together with Mr Hunter’s account of his instructions to Mr Jones to make payments from the account, was critical to Mr Jones’ defence.
[33]Ross v R [2017] NZCA 587 at [36].
It is relevant, in our view, that at sentencing, Mr Hayes submitted that Mr Jones was not the controlling mind, and that Mr Hunter was in a more dominant role in the corporate structure.[34] However, this was not advanced by Mr Hayes at trial because, as noted and as he told us, he was not aware of it.
[34]Sentencing notes, above n 2, at [19].
We consider the way in which Mr Hayes formed his view about Mr Jones giving evidence and advised him of his reservations is problematic for three reasons. First, if Mr Jones wished to explain his role in CCL, his evidence could have been cogently briefed, with clear legal advice cautioning him against generalised statements about his own honesty, which were not needed for his defence in any event. A brief of evidence was required, so that both Mr Jones and his counsel knew the nature of the evidence to be given. In the event that an attempt was made by the Crown to raise Mr Jones’ previous convictions (which occurred in different circumstances as the propensity decision determined and makes very clear),[35] the Crown would risk a mistrial and Mr Hayes would have been ready to make an objection or seek a mistrial in that eventuality.
[35]Propensity judgment, above n 17, at [20]–[23].
Secondly, Mr Jones wished to produce documents from Exhibit A, which Mr Hayes thought were unhelpful to Mr Jones. Although Mr Hayes said he read the documents and told Mr Jones that they could be used against him, he did not go through the documents with Mr Jones or receive an explanation as to how Mr Jones thought they could assist his defence.
Third, without the documentary evidence or Mr Jones’ evidence, the jury had no evidence of the context or basis for Mr Jones’ belief that the funds were legitimate, and that he was not reckless. Without the evidence, there was no effective way for Mr Hayes to advance a cogent defence for Mr Jones or conduct an effective cross‑examination of the Crown’s witnesses.
Alternatively, even if Mr Jones ultimately elected not to give evidence himself, he wanted to instruct a banking expert. The Exhibit A documents needed to be produced by Mr Hunter or Mr Jones or commented on by a forensic or banking expert. That reinforced the fact that there was insufficient time in the week before trial to brief an expert, or adequately brief Mr Jones the day before the trial. Plainly, the option of briefing and calling the incapacitated Mr Hunter was not available.
We consider the omission to call any evidence reinforces that the obvious course of action for counsel was to renew the application for an adjournment in order to advance a coherent defence for Mr Jones.

The erosion of Mr Jones’ right to silence

In his closing address, Mr Hayes addressed the test for recklessness but in doing so emphasised the difficulty of not knowing what Mr Jones thought. He described the test as:
… a subjective test, which means it’s what was going on in [Mr Jones’] head, and this is where, I would submit to you, that this is the difficulty of this case, how do you know what was going on in his head? Did the thought pass through his mind: “This looks a bit funny, I’d better…”, and then he just dismissed it. That’s effectively what you have to find out.
He then proceeded to address the jury on the deposits that were made by Mr Jones to the various accounts, including his own, and the lack of any explanation. He said:[36]
In regards to the deposits, you would have to be pretty silly if you were going to be the money launderer to deposit the money into your own accounts and transfer it to your own accounts wouldn’t you? You have seen Mr Jones sitting here. You haven’t heard from him of course, but you can form your own ideas about that.
[36]Emphasis added.
Mr Ryan submits that this was an intrusion on the defendant’s right to silence and undermined the right of Mr Jones to not give evidence at trial.
The Crown in its closing address had also maximised the failure of Mr Jones to provide an adequate explanation by drawing a distinction between pre‑charge and pre‑arrest and post‑charge at the trial:
Yesterday, Mr Hayes put a question to [Detective Constable] Hunter to suggest that Mr Jones had the right to remain silent, he doesn’t need to prove anything – and this, members of the jury, is quite right on arrest and in court. But you will recall, when Mr Jones is being asked for this information, he wasn’t being, he hadn’t been arrested, there wasn’t even a police investigation underway. These were questions asked of him by the Westpac fraud teams.
The Crown went on to suggest that Mr Jones failed to provide information because he “had no plausible explanation.”
We consider that while it is an error that Mr Jones’ right to silence was abrogated, particularly by defence counsel’s closing, counsel’s statements serve to reinforce the need for Mr Jones to have provided an explanation. By not giving or adducing any evidence, contrary to Mr Jones’ initial intention to provide an evidential basis to show the funds were understood to be legitimate, it left an inference available to the jury that there was no credible explanation that Mr Jones could give.
Not only did counsel’s address undermine Mr Jones’ right to silence, as Mr Ryan submits, this ground supports our view that counsel was in error in not briefing or adequately advising Mr Jones about his giving or calling evidence and not renewing an application for an adjournment of the trial, in order to adduce the explanatory evidence Mr Jones wished to offer.

Failure to adequately cross‑examine expert witnesses

Mr Ryan asserts trial counsel failed to adequately cross‑examine the two Crown witnesses on their purported expertise and to object to evidence of inappropriate speculation. While we consider there is merit in this ground, given our findings above, we consider that this ground does not need to be taken further.

Has there been a miscarriage of justice?

In Sungsuwan v R, the Supreme Court described the correct approach to a conviction appeal on trial counsel competence or error is whether the error affected the outcome:[37]
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[37]Sungsuwan v R, above n 16.
As Arnold J observed in R v Scurrah, the judgments in Sungsuwan “indicate that the focus should be on the trial process and its outcome rather than on the characterisation of counsel’s conduct”.[38] The Court summarised the approach required by the majority in Sungsuwan v R to be:[39]
… ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.
[38]R v Scurrah CA159/06, 12 September 2006 at [13].
[39]At [17].
In Hall v R, this Court drew a distinction between trial counsel error on fundamental matters, which would almost inevitably result in an unfair trial and thus a miscarriage, and trial counsel errors on matters less fundamental, which would not always result in a miscarriage.[40] The Court held that there will generally be a miscarriage of justice if trial counsel fails to follow specific instructions with respect to the fundamental decisions of the defence, which includes electing whether to give evidence and whether to advance a defence based on the defendant’s version of events.[41]
[40]Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [74]–[77].
[41]At [65].
We note two further decisions of relevance. The failure to call a critical defence witness can lead to a miscarriage of justice as this Court held in Cassidy v R.[42] Further, this Court has emphasised that trial counsel must ensure that the appellant’s election not to give evidence is an informed one. In van der Krogt v R, this Court found that trial counsel’s duty included briefing a client to give evidence if they elected to do so, particularly given counsel’s assessment that the defendant’s prospects were bleak if he did not give evidence.[43] This briefing would have included informing the appellant of what cross‑examination would entail and the topics that he could expect to be covered, in addition to completing a brief of evidence.[44] Although counsel’s failure to prepare a brief of evidence will not always be an error, the Court found that counsel’s failure to prepare a brief of evidence was significant in that case.[45]
[42]Cassidy v R [2019] NZCA 80 at [22]–[26].
[43]van der Krogt v R [2020] NZCA 512 at [38].
[44]At [37]–[38].
[45]At [39].
Here, Mr Jones wanted to give evidence but was not adequately advised how the risk of his previous convictions was manageable. Nor did counsel discuss with him the relevance of the Exhibit A documents and whether they provided a credible explanation for the receipt of the funds. We consider this occurred because counsel did not brief Mr Jones or prepare a brief of evidence for him or record counsel’s reasons and advice as to why the Exhibit A documents were prejudicial to his defence or inform him of potential cross‑examination by the Crown.
The failure to adequately address those matters meant that counsel did not understand the nature of the documents or their significance to Mr Jones’ defence. This in turn meant that counsel did not address the need to call evidence or turn his mind to the necessity of applying for adjournment of Mr Jones’ trial, with a view to the charges being heard jointly with Mr Hunter’s.
We are satisfied that trial counsel’s failures to adequately brief and advise Mr Jones about his, Mr Hunter’s or an expert’s potential evidence and to seek an adjournment of Mr Jones’ trial were significant errors. Those errors have led to a real risk that the outcome of the trial was affected and the verdicts are unsafe.
We are satisfied that a miscarriage of justice has occurred. The appeal is allowed on this ground.

Jury research during trial

Given our conclusion that a miscarriage of justice occurred as a result of trial counsel error, we deal only briefly with the complaint that some jury members may have undertaken research about Mr Jones during the trial.
In his evidence before us, Mr Jones raised his concern that there had been recent multiple “hits” on a web page that recorded his previous conviction. Mr Jones discovered this when he searched his name and found it featured among the top results. Previously, when he had accessed his profile, that page had been “buried” requiring “a lot of research” to reach. Mr Jones was, however, unable to ascertain the identification of those persons who had sought the information. He said privacy rules prevented him from confirming the names of persons who had conducted the searches unless he actually had specific names of jurors. Jury lists are not available to defendants and it is an offence for the jurors’ names to be promulgated or used, so Mr Jones could not advance the matter.
Jurors undertaking their own research would be a serious concern. Jurors should be warned by the trial judge of the prohibition on this and the sanctions which can follow if they do so. We note that in this case the Judge advised the jury of the Contempt of Court Act 2019 but did not advise them of the relevant sanctions. However, without evidence to confirm that any juror took such action in this case, we cannot take this ground any further.

Should there be a retrial?

Section 233(3) of the Criminal Procedure Act 2011 confers a broad discretion as to the orders that may follow the first appeal court setting aside a conviction.[46] These include directing a new trial be held.[47] The charges against Mr Jones were for serious offending and, in the normal course, we would order a retrial. However, a number of features of this case have caused us to consider whether this step is appropriate.[48]
[46]H (SC 49/2021) v R [2022] NZSC 42, [2022] 1 NZLR 21 at [28].
[47]Criminal Procedure Act 2011, s 233(3)(b).
[48]At our invitation, counsel filed further submissions on this point.
In New Zealand, the decision in Reid v The Queen remains the leading case on the circumstances in which a retrial will be ordered.[49] The approach taken in Reid was described by the Supreme Court in H(SC49/2021) v R as “sufficiently flexible, directing the appellate court to focus on a factual inquiry as to where the interests of justice lie”.[50]
[49]Reid v The Queen [1980] AC 343 (PC); and H (SC 49/2021) v R, above n 46, at [38].
[50]H (SC 49/2021) v R, above n 46, at [38].
Reid was concerned with a murder conviction in which the appeal was allowed on the ground that the verdict was unreasonable and could not be supported by the evidence. The Privy Council considered that save in exceptional circumstances, the power to order a retrial ought not be exercised where the verdict was set aside because the evidence at trial was insufficient to justify a conviction by a reasonable jury even if properly directed.[51] Their Lordships recognised, however, that there may be other circumstances in which it would not be in the interests of justice to order a retrial, though cautioned against attempting an exhaustive list. Factors identified as relevant to the decision include the seriousness of the offending, the effect on the defendant of a new trial, the time between the offending and any new trial and the strength of the Crown case at the first trial.[52] As to the last, we note the observation that even where an acquittal is, on balance, more likely than conviction at a retrial, it may nevertheless be in the interests of the public, the complainant and the defendant that there be a determination of the matter by jury verdict.[53]
[51]Reid v The Queen, above n 49, at 348–349.
[52]At 349–350.
[53]At 350, citing Ng Yuk‑kin v The Crown (1955) 39 HKLR 49 (FC) at 60.
In Banks v R this Court observed that a retrial is routinely ordered where a conviction appeal had been allowed in reliance on new evidence so that the new evidence can be tested, along with all other relevant evidence, by the trial court.[54] But the Court also noted that even in a “new evidence” case the decision to order a retrial is discretionary.[55]
[54]Banks v R [2015] NZCA 182 at [21]. The Court had initially ordered a retrial before granting the appellant’s application for recall of the judgment and the entry of an acquittal verdict. A retrial was ultimately not ordered because the Crown had failed to disclose the fact that its principal witness had changed his position in the face of the new evidence the appellant sought to adduce on appeal; it would not be right to allow the Crown to try to improve on its case at a new trial by advancing an account it had previously abandoned or an entirely new account: at [34].
[55]At [21].
Finally, we also note the observation in Banks that the usual reason for not ordering a retrial is that the defendant has served all or a substantial part of his sentence.[56]
[56]At [22].
The present case is not one in which it could be said that the jury verdict was unreasonable on the evidence presented at trial. Rather, Mr Jones has adduced further evidence for the purposes of the appeal that suggests an acquittal is likely in the event of a retrial. It is, using the Banks description, a “new evidence” case.
The new evidence that could be expected to be adduced at a retrial is that of Mr Hunter and Mr Jones, together with the documents relating to Dr Rapa’s investment. The Crown submitted that this is not a case where a conviction could not be sustained on the evidence and it could not be said that a trial with different evidence and a different fact finder would produce the same result as Mr Hunter’s trial. Ms Bell pointed particularly to the principal issue of recklessness, which was unique to the individual and to the fact that Mr Hunter’s evidence seemed to be advanced on the basis of distance between him and Mr Jones in terms of managing the inflow of money.
However, while Ms Bell relied on part of the evidence given at Mr Hunter’s trial, there was other extensive evidence elicited by the Crown in its cross‑examination of Mr Hunter that he gave Mr Jones directions, which Mr Jones followed, including emails and messages from Mr Hunter to Mr Jones in August and September 2019 instructing Mr Jones how to deal with the money the company had received and which Mr Hunter believed to be Dr Rapa’s investment funds. Given that this was the Crown case at the Hunter trial, it is difficult to see that it could advance a different or better case at a retrial of the charges against Mr Jones, at which Mr Hunter would give evidence.

Even allowing for the fact that a retrial would involve a different fact finder, there are other aspects of the case which affect the decision whether to order a retrial. Mr Jones is now 76 years old. The alleged offending occurred in 2019 and any retrial would be unlikely to occur until 2026. Importantly, Mr Jones has largely served his sentence. He was granted bail pending this appeal and his sentence was suspended under s 343(a) of the Criminal Procedure Act but, at the date of suspension, he had served eight months out of his 10‑month home detention order. Mr Ryan has advised that Mr Jones has continued paying reparation in the sum of $875.00, the payments of which did not cease upon the suspension of his sentence.
In these circumstances, we do not consider that a retrial would be in the interests of justice.

Result

The application to set aside the notice of abandonment is granted.
The application to adduce fresh evidence on appeal is granted.
The appeal against conviction is allowed.
The convictions and sentence are set aside.
We direct that a judgment of acquittal be entered.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

S (CA88/2014) v R [2014] NZCA 583 at [15].

[2025] NZCA 338

18 July 2025 at 2 pm