Mayer v The Queen - [2014] NZCA 216

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/2014
[2014] NZCA 216

BETWEEN	MALCOLM DUNCAN MAYER Appellant
AND	THE QUEEN Respondent

Hearing:	27 May 2014
Court:	Stevens, Winkelmann and Lang JJ
Counsel:	G N Bradford for Appellant M D Downs for Respondent
Judgment:	4 June 2014 at 3.00 pm

JUDGMENT OF THE COURT

The application for bail is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

Following a trial by Judge alone in the District Court, Mr Mayer was convicted of 26 counts of fraud, comprising dishonestly using a document for pecuniary advantage and using a forged document.[1] He was sentenced by Judge Gibson to a term of 6 years’ imprisonment with a minimum non-parole period of three years.[2] He seeks bail pending his appeal against conviction and sentence.[3]

Background

[1]R v Mayer DC Auckland CRI-2010-004-8862, 20 December 2013; Crimes Act 1961, ss 228(b), 257(1)(a) and 66(1).

[2]R v Mayer DC Auckland CRI-2010-004-8862, 18 February 2014.

[3]Bail Act 2000, s 55.

The indictment faced by Mr Mayer related to some 26 separate property transactions.[4] The first category of offences (counts 1–7) were first in time and alleged criminal conduct by Mr Mayer alone. The second category (counts 8–16) arose out of a broad allegation that Mr Mayer and Mr Turnbull, the co-accused, entered into a conspiracy to defraud Trustees Executors Limited (TEL) using undisclosed sale and purchase agreements and various other associated falsities. These second category charges concerned the same type of scheme and transactions underlying Counts 1–7, laid against Mr Mayer alone.
[4]Giving rise to a total of 36 counts, 10 of which were laid as alternatives. All 36 counts related to the same two types of offending alleged: dishonestly using a document and forgery.
The third category (counts 17–36) concerned properties bought by Mr Mayer and on sold to Mr Turnbull. The allegation was that Mr Mayer stood to make substantial profits from these transactions, in which Mr Turnbull was complicit. In this category there were a number of transactions in respect of which the underlying false or forged documents had been constructed by Mr Mayer or someone acting on his instruction.
The overall nature of Mr Mayer’s offending was summarised by the judge at sentencing as follows:
[5] … [E]ssentially, the Crown case involved charges founded on a series of frauds concerning funding for 26 properties purchased using mortgage monies advanced by the complainant, [TEL] and you obtained funding using a double or dummy agreement for sale and purchase process, false income statements in some instances, and the mortgagee was led to believe that the property was being purchased for sums in many instances that were higher than that which you were actually paying for the property.
[6] The true purchaser was concealed by you, or by Mr Turnbull in cases where he was involved, and you assisted in that insofar as he was concerned. The scam involved using dummy purchases and often second agreements, and was undertaken to circumvent TEL’s lending…

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 The Queen

Details

AGLC: Mayer v The Queen [2014] NZCA 216
Case: [2014] NZCA 216
Decision Date: 4 June 2014 at 3.00 pm

CaseChat Overview and Summary

In this case, the appellant, Malcolm Duncan Mayer, sought bail pending his appeal against conviction and sentence. Mayer was convicted of 26 counts of fraud and was sentenced to 6 years’ imprisonment with a minimum non-parole period of 3 years. The legal issues the court was required to decide were whether bail should be granted in light of the appellant's appeal against conviction and sentence, and if so, what weight should be given to the grounds of appeal. The court considered three grounds in support of the application for bail: the strength of the appeal, the length of the sentence imposed, and the length of time that will pass before the appeal is heard. The court also took into account Mayer's personal circumstances, including an apparent inability to prepare for trial.

The court found that the first ground of appeal, alleging prosecutorial misconduct, was not strong as the relevant information concerning the co-accused's whereabouts had been disclosed to defence counsel prior to the second trial. The court also found that the second ground of appeal, which appeared to be a verdict against the weight of evidence, was difficult to assess in the absence of particulars. Regarding the preparation for the appeal hearing, the court found that the prison managers were complying with their obligations and doing what they could to facilitate Mayer's preparation for the appeal hearing.

The court concluded that the applicant had not discharged the onus on him to show that it was in the interests of justice to grant bail. The application for bail was declined.

The final orders of the court were that the application for bail is declined, and Mayer is to remain in custody until his appeal against conviction and sentence is determined.

Orders