Mayer v R - [2015] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/2014
[2015] NZCA 206

BETWEEN	MALCOLM DUNCAN MAYER Appellant
AND	THE QUEEN Respondent

Hearing:	5 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	P Dale for Appellant T Simmonds for Respondent
Judgment:	29 May 2015 at 2 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Malcolm Mayer was found guilty following a five week trial before Judge Gibson sitting without a jury in the Auckland District Court on 16 counts of dishonesty using document and 10 counts of using a forged document.[1] He was convicted and sentenced to six years imprisonment with a minimum period of imprisonment of three years.[2]
[1]R v Mayer DC Auckland CRI-2010-004-8862, 20 December 2013.
[2]R v Mayer DC Auckland CRI-2010-004-8862, 18 February 2014.
Mr Mayer appeals against both his conviction and sentence. His counsel, Mr Dale, who did not appear at trial, accepts that the Judge had an adequate evidential foundation for returning guilty verdicts on all charges. He does not assert that the Judge erred in fact or law. Instead, Mr Dale submits that the prosecutor deliberately misled both the Court and defence counsel when advising that the Crown was unaware of the whereabouts of Mr Mayer’s co-accused, Simon Turnbull, who had left New Zealand before trial. He says that the prosecutor’s misconduct was sufficiently egregious to justify a retrial. Alternatively, he says that it raises the risk of a miscarriage of justice.
Mr Mayer appeals against the finite sentence on the ground that it was manifestly excessive and against the minimum period on the ground that it was inappropriate.

Facts

While the trial lasted for five weeks, the essential facts were not in material dispute.
The charges against Mr Mayer fell into three categories or tranches as they were called. In the first group he was charged alone with seven counts of fraud. In the second and third groups he and Mr Turnbull were charged jointly with 29 counts of fraud.[3]
[3]10 of which were laid as alternative counts.
The charges arose from Mr Mayer’s financial relationship with Trustees Executors Ltd (TEL), which is and was a second tier financier. Its policy was to lend a maximum of 80 per cent of a property’s registered value or $4 million in total to one borrower or an associated entity or entities. On 26 occasions between December 2003 and August 2007 Mr Mayer applied successfully to TEL for loans for himself or other entities, some of which were fictitious. False documents were tendered in support of all applications.
Mr Mayer’s modus operandi was simple but crude. He practiced what is known as price hydraulicing. In the first category of transactions a fictitious party created by Mr Mayer would enter into an agreement to purchase property from a genuine vendor. The fictitious purchaser immediately entered into a second agreement to on sell the property…

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 Mayer v R

Details

AGLC: Mayer v R [2015] NZCA 206
Case: [2015] NZCA 206
Decision Date: 29 May 2015 at 2 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Malcolm Duncan Mayer, appealed against both his conviction and sentence. Mayer was found guilty of 26 charges of dishonesty using a document and using a forged document. Mayer's counsel submitted that the prosecutor deliberately misled the Court and defence counsel when advising that the Crown was unaware of the whereabouts of Mayer's co-accused, Simon Turnbull, who had left New Zealand before trial. Counsel also submitted that the finite sentence was manifestly excessive and that the minimum period of imprisonment was inappropriate. The Court found that the prosecutor was under no obligation to disclose the information and that the existence of the information did not approach the relevance threshold required by the Criminal Disclosure Act 2008. The Court also found that the sentence imposed by the Judge was within range and that the minimum period of imprisonment was appropriate. The appeal against conviction and sentence was dismissed.

Orders