Michaels v R - [2014] NZCA 258

IN THE COURT OF APPEAL OF NEW ZEALAND

CA54/2013
[2014] NZCA 258

BETWEEN	LOIZOS MICHAELS Appellant
AND	THE QUEEN Respondent

Hearing:	27 May 2014
Court:	Harrison, Ronald Young and Simon France JJ
Counsel:	P T Eastwood for Appellant R Reed for Respondent
Judgment:	19 June 2014 at 3 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce the further evidence of Peter Hikaka is granted.
BThe application for leave to adduce the further evidence of Clinton Bowerman is declined.
CThe application for an extension of time to appeal is granted.
DThe appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Michaels was convicted before Judge Field, sitting alone, on 30 counts of obtaining by deception.[1] The total loss attributed to Mr Michaels’ actions was over $3 million. He was sentenced to a total term of eight years’ imprisonment, with a minimum parole period of three years nine months’ imprisonment.[2] Mr Michaels appeals his convictions on the basis that his trial counsel made serious errors that have resulted in a miscarriage. He appeals both aspects of his sentence.
[1]R v Michaels DC Auckland CRI‑2010‑004‑2225, 30 November 2012.
[2]R v Michaels DC Auckland CRI‑2010‑004‑2225, 18 December 2012.
Affidavits have been filed by Mr Michaels and impugned counsel, Mr Peter Kaye. Mr Kaye was assisted in his trial preparation by a private investigator, Mr Rhodes, who has filed an affidavit.[3] We record Mr Michaels and Mr Kaye gave oral evidence before us, and were cross‑examined.
[3]These affidavits were filed pursuant to the Court of Appeal (Criminal) Rules 2001, r 12A.
The charges covered two separate alleged frauds. The first, which was the most complex, involved inducing the victims to invest in various schemes centred around the casino industry. The second involved convincing a vendor of upmarket apartments to pay money as an earnest vendor to keep a would‑be purchaser of several apartments interested. In relation to each event Mr Michaels’ defence was that he never made the false representations attributed to him, and that he was the victim of the complainants’ illegal activities.

Facts

What first follows is a very truncated overview of the casino enterprise charges. Mr Michaels inserted himself into the Christchurch Casino by spending sufficient money to be classed as a VIP customer. This brought him into contact with the two primary victims, Mr Lyttleton and Mr Arbuckle, who were at that point effectively the second and third in charge of the casino. Each victim had issues – Mr Lyttleton had been passed over for the top job and was aggrieved and looking for other opportunities. Mr Arbuckle also had issues and was open to new opportunities.
The Crown allegation, accepted as proved by the Court, is that Mr Michaels falsely represented himself as having associations with, and working for, a well-known very wealthy Asian family (the Ho family) who have large casino interests in Hong Kong and Macau and are substantial shareholders in a company…

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 Michaels v R

Details

AGLC: Michaels v R [2014] NZCA 258
Case: [2014] NZCA 258
Decision Date: 19 June 2014 at 3 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Loizos Michaels appeals his conviction and sentence against the Crown. Michaels was convicted on 30 counts of obtaining by deception, with a total loss of over $3 million and was sentenced to eight years' imprisonment with a minimum parole period of three years and nine months. Michaels argues that his trial counsel made serious errors resulting in a miscarriage of justice. The court considered four issues: failure to disclose conflict, inadequate preparation, failure to call witnesses, and failure to cross-examine properly. The court found no merit in Michaels' complaints and dismissed the appeal against conviction. Regarding the sentence appeal, the court concluded that the starting point of eight years' imprisonment was appropriate, considering the scale of the loss, the sustained and complex fraud, the deliberate draining of every asset a victim had, and the number of victims. The appeals against conviction and sentence are dismissed.

The court considered four issues in relation to Michaels' appeal against his conviction. First, the court found no conflict of interest in relation to the trial counsel's partner being associated with the Crown solicitor's firm. Second, regarding inadequate preparation, the court found that trial counsel had spent sufficient time with Michaels and had obtained detailed instructions. Third, the court found no merit in the failure to call witnesses, as there was no basis on which an appellate court could conclude any miscarriage had been occasioned by the absence of these witnesses. Fourth, in relation to the failure to cross-examine properly, the court found that the cross-examination of the complainant was thorough and structured, challenging the key matters and laying the foundation for the key themes of the defence. The court concluded that the appeal against conviction must be dismissed, as none of the criticisms establish a miscarriage of justice. The court was satisfied that Michaels was well represented and was given every opportunity to present his story. That it was not believed, and that it did not give rise to a reasonable doubt, cannot be laid at the door of trial counsel.

Orders