Krukziener v Hanover Finance Ltd

[2008] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA166/07
[2008] NZCA 18

THE QUEEN

v

GLENDA MARY TOPLISS

Hearing:12 February 2008

Court:Glazebrook, John Hansen and Wild JJ

Counsel:D J Taffs for Appellant

S B Edwards for Respondent

Judgment:22 February 2008 at 3pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

[1]       Of the four grounds initially advanced in the notice, this appeal against conviction reduced to two:

(a)Incompetence on the part of trial counsel.

(b)The prolixity of counts and the trial Judge’s directions about them.

[2]       The appellant was convicted following trial before Judge Saunders and a jury in the District Court at Greymouth over 10 days in February 2007.  She had faced 107 counts of fraud.

[3]       The charges arose out of the appellant’s employment as accounts manager for a Greymouth engineering company.  The Crown case was that the appellant had fraudulently overpaid herself and her husband. 

[4]       Affidavits in support of the appeal were filed by the appellant and by Mr Topliss.  The Crown filed an affidavit by trial counsel, Mr Green.  Messrs Topliss and Green were cross-examined on their affidavits.  The appellant did not file an affidavit in reply to that of Mr Green.  She was not required for cross-examination on the one affidavit she did file (sworn on 22 July 2007), and chose not to avail herself of the opportunity to give evidence by video, an arrangement offered as she was unable for medical reasons to travel to Wellington.

[5]       At the start of his submissions, Mr Taffs conceded that he could not pursue the first ground of appeal, insofar as it alleged that Mr Green had not followed the appellant’s instructions.  There was uncontested evidence from Mr Green that he had followed the appellant’s instructions, in particular as to the disclosure which should be requested before the trial.  Mr Topliss, in turn, accepted he was not present when some of those instructions were given.

[6]       Mr Taffs did pursue, albeit faintly, a submission that Mr Green had been incompetent in not pursuing disclosure of the records of the appellant’s use of her computer at the company, in particular the log-on and log-off dates and times.  He contended that this may have enabled Mr Green to challenge the evidence given by the company’s two directors that they had authorised the fraudulent payments made by the appellant.

[7]       It seemed to us that this line of questioning would have involved a real risk of demonstrating to the jury that the appellant had made the fraudulent payments without the directors’ authority.  That was because she had in fact paid the company’s wages each Tuesday night using, without authority, one of the director’s computer access codes.  Both directors were under the mistaken belief that the wages had only been paid following their authorisation each Wednesday morning.  Mr Green’s appreciation of that risk was the very reason he counselled the appellant against pursuing the computer evidence, advice he said the appellant accepted. 

[8]       We were equally satisfied that the other disclosure sought was irrelevant.  For example, Mr Topliss gave detailed evidence before us about documents requested with a view to establishing that he had worked for the company on various days after 16 March 2003.  These requests demonstrated a misunderstanding by Mr Topliss, and apparently also by the appellant, of the Crown case.  The Crown did not allege fraud on the appellant’s part in paying Mr Topliss wages for days which he had not in fact worked after 16 March 2003.  Rather, the Crown case was that Mr Topliss had continued to receive holiday pay until about July 2003 because the appellant had, fraudulently, not deducted hours paid from the running balance in the holiday pay section of the company’s wage records for Mr Topliss.  It became clear to us that Mr Taffs shared this misunderstanding of this part of the Crown case. 

[9]       There is nothing in the trial counsel competence point.

[10]     We turn to the second ground of appeal.  Undoubtedly, 107 is a very high number of counts to include in a single indictment.  But, as Mr Taffs accepted, they were closely related.  In his evidence Mr Green said that he discussed the possibility of severance with the appellant, advising her that it was unlikely to be granted because the counts were interrelated.  Further, he said that the appellant  did not want severance, because she did not relish the prospect of two trials.  Mr Taffs accepted that the trial Judge directed the jury several times that they needed to consider each count separately.  The thrust of his argument was that the Judge had directed the jury based on the “groupings” of counts.  For example, in relation to the second group of counts, 17-105, which charged the appellant with fraudulently paying herself overtime, the Judge directed that the foreman should feel free to indicate to the Court that the jury’s verdicts on all those counts were either guilty or not guilty if that was the case.  Mr Taffs submitted that this invited the jury to take a “job lot” approach.  Having considered the relevant part of the Judge’s summing up (paragraphs [84] ‑ [88]), we reject this submission.  We regard the Judge’s directions as clear, helpful and not as detracting in any way from his direction to the jury that they needed to consider the evidence individually for each count, in arriving at their verdicts.

[11]     In the course of his evidence Mr Green recalled that, during the trial, the Judge required that the bundles of documents which had been prepared for the jury be paginated.  When they were distributed to the jury they had only tabs, sometimes with several pages of documentation under each tab.  Mr Taffs suggested this reinforced his submission that the prolixity of counts and the Judge’s direction about them rendered the jury’s verdicts unsafe.  Again, we reject this submission.  As Ms Edwards submitted for the Crown, we think the Judge’s requirement for pagination was no more than the Judge insisting that the documentary evidence provided to the jury was properly managed, a point this Court referred to in R v Tukuafu [2003] 1 NZLR 659 at [20].

[12]     As neither of the points pursued on appeal succeeds, the appeal is dismissed.

[13]     In the result, the appellant, who was granted bail pending the outcome of this appeal, is to resume the sentence of imprisonment imposed on her, in respect of which she has been granted home detention.  We note that the Crown undertook to ensure that the appropriate authorities would advise the appellant of the arrangements for the resumption of home detention.

Solicitors:
Crown Law Office, Wellington