Mills v Police

[2020] NZHC 2217

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-67

[2020] NZHC 2217

BETWEEN

JOSEPH MILLS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Virtual hearing:	28 August 2020
Appearances:	L K McMaster for the appellant A S C Alcock for the respondent
Date of judgment:	28 August 2020

REASONS FOR JUDGMENT OF JAGOSE J

The reasons for judgment was delivered by me on 28 August 2020 at 2.00pm.

…………………………. Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Hamilton

Hamilton Legal, Crown Solicitor, Hamilton

MILLS v NEW ZEALAND POLICE [2020] NZHC 2217 [28 August 2020]

[1]                Joseph Mills appeals against the judgment of Judge RLB Spear in the District Court at Hamilton on 20 July 20201, convicting him of money laundering.2

[2]                At the conclusion of this virtual hearing, as an alternative to my oral judgment then, I offered to give the result then, with reasons to follow in writing. Counsel were content with the latter course. I dismissed the appeal. These are my reasons.

Background

[3]                On 3 December 2018, $3,534 was transferred from the complainant’s bank account to a bank account said to be held by Mr Mills. Later that day, $3,500 was withdrawn from Mr Mills’ bank account. On enquiry by the police under caution,  Mr Mills explained a friend had asked to use his bank account to transfer money into, and to use his bank card to  withdraw  the  transferred  money from,  the account.  Mr Mills agreed, and supplied his account details and card to his friend.

Judgment under appeal

[4]                The Judge heard evidence from the complainant and a police officer. The complainant established the unlawful transfer of money from her account to another.3 The police officer established the other account was held in Mr Mills’ name.4 The officer’s enquiry of Mr Mills was not formally recorded, but his evidence was drawn from photocopies of his contemporaneous notes (his notebook no longer being available).5 The Judge found Mr Mills’ response to be “cogent” and “credible” evidence of the unlawfully-obtained money’s transfers,6 and Mr Mills’ provision to another of access to his bank account and card carried sufficient risk that other person “may use such access for dishonest purposes” to render Mr Mills reckless as to the money’s lawful source,7 thus establishing his guilt beyond a reasonable doubt.8

1      Police v Mills [2020] NZDC 14557.

2      Crimes Act 1961, s 243(2).

3      Police v Mills, above n 1, at [3]–[4].

4 At [5].

5      At [6]–[7].

6      At [18]–[19].

7 At [24].

8 At [25].

[5]                Mr Mills’ counsel, Laurie McMaster – while accepting the transfer of money from the complainant’s account was of the proceeds of an offence – argues the Judge erred in fact in concluding Mr Mills’ guilt, absent evidence linking him to the transfer of funds from the complainant’s account, or linking his friend to the money transferred from that account. She also argues the Judge erred in law in concluding Mr Mills was reckless because of the lack of evidence of his relationship with his friend.

Approach on appeal

[6]                Mr Mills has a first appeal right against his conviction to this Court.9 I must allow an appeal against conviction if I am satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”.

Otherwise I must dismiss the appeal.10

[7]                By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr Mills, or has resulted in an unfair trial or a nullity.11 The appeal proceeds by way of rehearing, in which I am to form my own view of the facts and determine the appeal accordingly,12 while taking into account any advantages the trial judge may have had.13 Mr Mills must show error has been made. The threshold is high; not every error will amount to a miscarriage of justice.14

Discussion

[8]                The key assessment for the purposes of s 243(2) is not if Mr Mills himself concealed or uplifted the complainant’s money, but if he ‘engaged’ with a money laundering transaction – relevantly, here, if he “assists any other person, whether

9      Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).

10 Section 232.

11 Section 232(4); Misa v R [2019] NZSC 134 at [38]–[48], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145, and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.

12     Sena v R [2019] NZSC 55 at [32].

13     At [38]–[40].

14     Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

directly or indirectly, to deal with that property”15 – and was reckless as to the possibility the property was the proceeds of an offence, which is open to proof by inference.16

[9]                The essence of the police officer’s evidence, as to his five-minute enquiry of Mr Mills at home on 8 May 2019, was:

I asked him about some money that had been transferred into his account. He seemed to recall what I was asking him about and stated that’s a friend of his

… had transferred the money into his account and then had asked him for the use of his bankcard to withdraw the money from his account.

[10]            Ms McMaster argues there was no evidence linking the complainant’s evidence to Mr Mills’ statement to police, which lacked specificity as to the amount and date of his friend’s access to his bank account and card. She also argues the evidence did not “confirm” the payment was made into Mr Mills’ account. There was nothing connecting Mr Mills’ friend to the transfer out of the complainant’s account. And she says the Judge impermissibly inferred, from the absence of evidence of Mr Mills’ relationship with his friend, it was not such as to exclude his recklessness in allowing access to his bank account and card. The last meant Mr Mills’ guilt was established in breach of Mr Mills’ rights under the New Zealand Bill of Rights Act 1990 to a presumption of innocence and not to be compelled to be a witness.

[11]            The former complaints are open to being made on the relatively brief and non- specific evidence led from the police officer of his casual and informal investigation of the offending. Nonetheless, they are complaints Mr Mills was not asked to affirm identification evidence obtained on production order issued to the bank, or to provide further specifics of his own explanation. It was open to the Judge to accept the police officer’s evidence essentially as unchallenged. The officer’s cross-examination did not go to any of those details, but instead dwelled on the conduct of the officer’s investigation and the accuracy of an aspect of his record of it (which the Judge held immaterial).17

15     Crimes Act 1961, s 243(4).

16     R v Allison [2006] 1 NZLR 721 (CA) at [28].

17     Police v Mills, above n 1, at [19].

[12]            The latter complaint misconstrues the Judge’s reasoning. The Judge found providing another access to one’s bank account and card was reckless, as risking access for dishonest purposes, unless there was mitigating evidence such as knowledge of and relationship with that other. The Judge is express: “I reach that conclusion without of course an explanation or any evidence at all as to who [the friend] is and what relationship [s/he] might have with [Mr Mills]”.18

[13]            I cannot identify any real risk of a more favourable outcome for Mr Mills, either on the evidence before the Judge or more generally in relation to the conduct of trial. His trial was neither unfair nor a nullity.

Result

[14]The appeal was dismissed.

—Jagose J

18 At [24].