Lock v The Queen - [2019] NZCA 473

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA653/2017
[2019] NZCA 473

BETWEEN	TREVOR JAMES LOCK Appellant
AND	THE QUEEN Respondent

Hearing:	31 July 2019
Court:	Miller, Peters and Woolford JJ
Counsel:	M W Ryan for Appellant P J Davey for Respondent
Judgment:	2 October 2019 at 10.00 am

JUDGMENT OF THE COURT

AApplication for leave to admit further evidence granted.
BAppeal against conviction dismissed.
CAppeal against sentence allowed in part. Sentences on charges 19 and 20 (providing false information to the Serious Fraud Office) are to be concurrent with charges 1, 9 and 17.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This appeal against conviction and sentence is about what passed between Mr Lock and his then counsel, Jeremy Bioletti, at his trial on multiple charges of deceiving business clients to secure a pecuniary advantage or benefit. It is his case that Mr Bioletti: failed to call Mr Lock despite clear instructions that he wanted to give evidence; failed to present the defence that he wanted to advance; and failed to call witnesses whom Mr Lock had told him to call.
Each of these failings, if established, would lead to the conclusion that Mr Lock did not have a fair trial and his appeal must be allowed, whether or not they affected the result.[1]

The charges

[1]Criminal Procedure Act 2011, s 232(4)(b). See for example R v K(CA421/2008) [2009] NZCA 176; and Mateparae v R [2017] NZCA 231.

The charges were brought by the Serious Fraud Office and tried before Judge Collins sitting as a judge alone. The following overview is drawn from his reasons for verdict:[2]
[1]       At material times the defendant Trevor James Lock was a man in his early 50s. He had tertiary qualifications in science. He had significant work experience in food production, particularly in the dairy sector.
[2]       During 2012–2015 he operated two companies relevant to these charges. The first was Nubiotics Limited, the second Nu-Brands Limited and Mr Lock was the mind and operating hand of both companies. He and they were based in Morrinsville.
[3]       The evidence established that by early 2012 Mr Lock personally was in severe financial difficulties. He had personal financial obligations he could not meet. His then operating mechanism Nubiotics Limited had no assets and little cashflow. From June 2012 the Crown allege that Mr Lock embarked upon a course of conduct that provides a context for many of the charges.
[4]       The Crown case is that the course of conduct involved a pattern of behaviour. In summary the Crown says that pattern involved individual instances of obtaining a deposit from a particular customer who wished to import either infant milk formula or Manuka honey. The deposit was then utilised to meet Mr Lock’s personal debts, or living costs or the operating overheads of Nubiotics or Nu-Brands. In each instance virtually no part of a deposit was utilised to advance the contractual obligations to provide product to an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lock v The Queen

Details

AGLC: Lock v The Queen [2019] NZCA 473
Case: [2019] NZCA 473
Decision Date: 2 October 2019 at 10.00 am

CaseChat Overview and Summary

Trevor James Lock, the appellant, appealed against his conviction and sentence in the Court of Appeal of New Zealand. He was found guilty of multiple charges of deceiving business clients to secure a pecuniary advantage or benefit. The appellant's counsel, Jeremy Bioletti, was accused of failing to call the appellant as a witness, failing to present the defence that the appellant wanted to advance, and failing to call witnesses whom the appellant had told him to call. The court found that the appellant's claims of ineffective assistance of counsel did not affect the result of the trial, and the appeal against conviction was dismissed. However, the appeal against sentence was allowed in part, and the sentences on charges 19 and 20 were to be concurrent with those on the three lead offences.

The court examined the evidence and submissions made by both parties, including affidavits sworn by the appellant and Bioletti. The court found that the appellant had admitted to making false representations and forging bank statements, and the Crown's case was unanswerable. The court also noted that Bioletti did not comply with the expectation to get written instructions on significant decisions, but this did not affect the result of the trial. The court agreed that an allowance ought to be made for the appellant's failure to plead guilty, and the sentences on charges 19 and 20 were made concurrent with those on the three lead offences.

Orders