Perez v The Queen - [2019] NZCA 465

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA222/2019
[2019] NZCA 465

BETWEEN	FRANK PEREZ Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2019
Court:	Courtney, Duffy and Woolford JJ
Counsel:	T J Darby for the Appellant A J Ewing for the Respondent
Judgment:	1 October 2019 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

Following a jury trial in the District Court at Manukau between 15 and 17 April 2019, Frank Perez was found guilty of one charge of using forged $100 bank notes and one charge of possessing forged $100 bank notes. He was found not guilty of another charge of using a forged $100 bank note. He was convicted and sentenced to 100 hours’ community work on each charge of which he was found guilty.[1]
[1]R v Perez [2019] NZDC 13597 [Sentencing notes] at [9].
He now appeals against conviction on the basis that the guilty verdicts were inconsistent with the not guilty verdict.[2]

Factual background

[2]Criminal Procedure Act 2011, s 232(2)(a).

On 27 February 2018, Mr Perez entered PAK’nSAVE in Clendon Park. He purchased $165.17 worth of groceries. He paid with cash, which included a forged $100 bank note. Mr Perez was found not guilty of the charge relating to this transaction.
On 28 February 2018, Mr Perez entered the Warehouse in Manukau. He proceeded to the entertainment section. Mr Perez approached the cashier and asked for an iPhone SE valued at $479. He handed the cashier two genuine $100 notes along with three forged $100 notes. The cashier gave Mr Perez the iPhone SE and $21 in change. He exited the store.
On 1 March 2018, Mr Perez entered PAK’nSAVE Clendon again. He purchased $130.78 worth of groceries. He attempted to pay with cash which again included a forged $100 bank note. The security manager recognised Mr Perez from viewing CCTV footage of his visit to the store two days earlier in which he had used a forged $100 bank note. The security manager and owner of the store approached Mr Perez and rejected his attempt at payment. Mr Perez said he was sorry and that he did not realise the cash was forged. He then handed them a genuine $100 note for payment. The police were notified. Mr Perez handed his wallet to a police officer. It was found to include three forged $100 bank notes with some genuine cash.
Although not produced to us, the forged notes are said to be obvious forgeries. They were printed on ordinary paper and had a black oval where the transparent plastic window should have been.
In explanation, Mr Perez said he had recently sold a water blaster on TradeMe for approximately $1,000 cash and did not realise some of the bank notes he received in payment were forged. However, when police spoke with the purchaser of the water blaster, he was able to provide documentary…

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 Perez v The Queen

Details

AGLC: Perez v The Queen [2019] NZCA 465
Case: [2019] NZCA 465
Decision Date: 1 October 2019 at 10.30 am

CaseChat Overview and Summary

Frank Perez was convicted of using and possessing forged $100 bank notes in the Manukau District Court and now appeals against his conviction to the Court of Appeal of New Zealand. Perez was acquitted of using a forged $100 bank note in a PAK'nSAVE transaction on 27 February 2018 but found guilty of the same offence in a subsequent PAK'nSAVE transaction on 1 March 2018. Perez was also found guilty of using forged $100 bank notes to purchase an iPhone SE at The Warehouse on 28 February 2018. Perez argues that the guilty verdicts were inconsistent with the not guilty verdict and that the verdicts represent an affront to logic and commonsense. Perez claims that the evidence in respect of all three incidents was identical and that there was no justifiable or reasonable basis for concluding that he knew the banknotes were forgeries.

The court found that the evidence in respect of the three incidents was not identical and that it was open to the jury to conclude that by the time of the second incident, Perez must have known that he was in possession of forged $100 notes. The CCTV footage from the Warehouse was clear and showed Perez handling the cash in his wallet for some time and with some deliberation. The jury may have given the benefit of the doubt to Perez in respect of the first incident at PAK'nSAVE when he pulled the notes straight out of his pocket. However, there was logic in the different verdicts and no inconsistency.

The appeal against conviction is dismissed.

Orders