Ngamu v R - [2010] NZCA 256

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ORDER PROHIBITING PUBLICATION OF THE REASONS IN NEWS MEDIA OR ON THE INTERNET OR ANY OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF THE NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA603/2009
CA640/2009
CA654/2009
CA655/2009 [2010] NZCA 256

BETWEEN ELAINE PATRICIA NGAMU (CA603/2009), GEORGINA RYDER (CA640/2009), KAREN ROWENA NGAMU (CA654/2009) AND DONNA TE ARIKI PAUL (CA655/2009)
Appellants

ANDTHE QUEEN Respondent

Hearing: 4 May 2010
Court: Chambers, Potter and Miller JJ Counsel: M J Levett for Elaine Ngamu
S D Cassidy for Georgina Ryder
J N Bioletti for Karen Ngamu
A C Balme for Donna Paul
N P Chisnall and M L Schwalger for Respondent

Judgment: 24 June 2010 at 9.30 am

JUDGMENT OF THE COURT

A All the appeals are allowed.

B All the convictions are set aside.

NGAMU & ORS V R CA CA603/2009 [24 June 2010]

DAn order is made prohibiting publication of the reasons in the news media or on the internet or in any other publicly available database until final disposition of the new trial. Publication in a law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Chambers J)

A cheque theft ring

[1] Between March 2005 and June 2006, mail was stolen from various post boxes in Auckland and Warkworth. Some of the mail contained cheques. Some of these cheques were fraudulently altered. The pattern was this. The cheque would be amended so as to create a false payee. The cheque would then be taken to the bank and lodged for the credit of the false payee. Someone with authority to operate the false payee’s account would then withdraw the proceeds of the cheque. These unlawfully gained proceeds were then split among some or all of the wrongdoers.

[2] The Crown case was that this cheque theft operation was being run by a criminal gang. The scheme had seven masterminds, of whom the current appellants, Elaine Ngamu, Georgina Ryder, Karen Ngamu, and Donna Paul were four. The other three were Jack Rasmussen, James Ryder and Ronald Richards.

[3] The Crown case was that these principal participants engaged a number of secondary participants. In the end, 19 secondary participants were charged. Their role was to allow the use of their bank accounts for deposit of the altered cheques. In return for this, they were generally paid a commission once the proceeds were withdrawn. The Crown proceeded against the secondary participants in a separate trial. We are not concerned with them.

[4] The seven principal participants faced a joint trial before Judge Joyce QC and a jury. With respect to each, the Crown alleged that he or she dishonestly and without claim of right, used a document, namely the cheque in question, with intent to obtain a pecuniary advantage. Each charge was brought under s 228(b) of the Crimes Act 1961.

[5] At trial, the prosecutor contended that…

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 Ngamu v R

Details

AGLC: Ngamu v R [2010] NZCA 256
Case: [2010] NZCA 256
Decision Date: 24 June 2010

CaseChat Overview and Summary

The case of Ngamu v R involved four appellants, Elaine Ngamu, Georgina Ryder, Karen Ngamu, and Donna Paul, who were convicted of being part of a criminal gang involved in a cheque theft operation. The appellants challenged their convictions and sentences on appeal. The central issue was whether the trial judge had set the jury the wrong task in their deliberations, leading to an incorrect application of the law. The Court of Appeal found that the trial judge had indeed set the jury an incorrect task by oversimplifying the jury's task and not adhering to the necessary legal framework for the charges. The Court held that the judge's approach was significantly different from the substantive law and permitted the jury to find an accused guilty without them having done anything with respect to a particular cheque. Consequently, the Court of Appeal allowed the appeals, set aside all convictions, and ordered a new trial on all counts.

Orders