Manu v The Queen - [2019] NZCA 415

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA642/2018
[2019] NZCA 415

BETWEEN	PAPA MANU Appellant
AND	THE QUEEN Respondent

Hearing:	2 April 2019
Court:	Williams, Collins and Toogood JJ
Counsel:	Q Duff and H G De Groot for Appellant M J Lillico for Respondent
Judgment:	6 September 2019 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal out of time is granted.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Collins J)

Mr Manu appeals his conviction in relation to one charge of obtaining by deception. The conviction followed a trial by jury conducted in the District Court at Manukau before Judge McGuire. Mr Manu was sentenced to 2 years and 3 months’ imprisonment.[1] He has not appealed his sentence.
[1]R v Manu [2018] NZDC 18384.
One ground of appeal is pursued. It is contended that a miscarriage of justice occurred when a Papadopoulos direction was given by the trial Judge not long before the jury returned its unanimous verdict. This submission is made in the context of the jury having earlier indicated that it had not reached either a unanimous, or a majority verdict.
Due to an administrative oversight Mr Manu’s notice of appeal was not filed in time. No prejudice is caused to the Crown by the delay and we grant leave to appeal out of time in order to enable us to address the merits of the appeal.

Background

The charge concerned a property that was purchased by a trust established by members of the Ōtāhuhu community in 1989. Mr Manu lived next‑door to the property. The trust was unable to maintain the property and defaulted in its obligations to pay rates. By 2010, the Manukau City Council was owed $22,000 in unpaid rates.
The Crown case was that Mr Manu told one of the surviving trustees and members of the community that he would take responsibility for paying the trust’s debts on the basis that the trust would repay him. Instead, Mr Manu took control of the trust and sold the property to a developer. The sale was settled in January 2011, with the proceeds being paid into a bank account in the name of Mr Manu’s parents. The rates arrears were paid from the proceeds. Mr Manu is alleged to have purchased a car from part of the proceeds. None of the money obtained from the sale of the property was paid to the trust.
In summary, the Crown case was that Mr Manu lied in order to gain control of the trust, then sold the trust property and benefitted from the proceeds.
The defence case was that Mr Manu took control of the trust in order to address its financial difficulties and to ensure the property was properly managed and maintained. He applied his time, money and business acumen towards achieving these goals. Mr Manu denied ever saying that he would personally pay the rates arrears. He…

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 Manu v The Queen

Details

AGLC: Manu v The Queen [2019] NZCA 415
Case: [2019] NZCA 415
Decision Date: 6 September 2019 at 3.00 pm

CaseChat Overview and Summary

Manu appeals his conviction in relation to one charge of obtaining by deception. The conviction followed a trial by jury conducted in the District Court at Manukau before Judge McGuire. The appeal was heard by Williams, Collins, and Toogood JJ. The sole ground of appeal is that a miscarriage of justice occurred when a Papadopoulos direction was given by the trial Judge not long before the jury returned its unanimous verdict. The jury had earlier indicated that it had not reached either a unanimous, or a majority verdict. Due to an administrative oversight, Mr Manu's notice of appeal was not filed in time. The court grants leave to appeal out of time as no prejudice is caused to the Crown by the delay.

The court finds that the trial Judge did not err in giving the Papadopoulos direction when he did so. First, the jury had deliberated for approximately seven hours and were clearly engaged in detailed consideration of the evidence and issues raised by the circumstances of the case. The jury asked several questions, which showed they were conscientiously considering the evidence and issues. Judge McGuire was ideally positioned to assess whether or not it was necessary to give a majority direction and subsequently a Papadopoulos direction. Second, nothing in the notes received from the jury, or any of the surrounding circumstances provides an evidential foundation for the submission that the jury were truly deadlocked or trending towards an acquittal. Third, the final note from the jury significantly undermines all the submissions that were made by Mr Duff concerning the Judge’s decision to issue a Papadopoulos direction. That note announced the jury had reached a unanimous verdict, but also stated that the jury had almost reached a verdict before the Papadopoulos direction had been given. In these circumstances, the suggestion advanced on behalf of Mr Manu that the jury would have felt pressured into reaching a decision is without foundation. The jury was "almost" at a point of having reached a decision before the Papadopoulos direction was given.

The application for leave to appeal out of time is granted. The appeal is dismissed.

Orders