Perez v The Queen
[2019] NZCA 465
•1 October 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA222/2019 [2019] NZCA 465 |
| BETWEEN | FRANK PEREZ |
| AND | THE QUEEN |
| Hearing: | 2 September 2019 |
Court: | Courtney, Duffy and Woolford JJ |
Counsel: | T J Darby for the Appellant |
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 proof that he had withdrawn funds from an ATM to pay Mr Perez in cash.
In his evidence at trial, Mr Perez offered another explanation as to how he might have innocently received the forged money: that he had also sold a dirt bike through TradeMe around that same time and that the seller had also paid him in cash.
The jury acquitted Mr Perez of the charge relating to the first PAK’nSAVE incident but found him guilty of the remaining two charges.
Approach on appeal
The principles applicable to appeals based on inconsistent verdicts are well established. The obligation to establish inconsistency rests with the person challenging the conviction.[3] An appellate court will only intervene when the jury’s different verdicts represent “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.[4] An example is “when the evidence on one count is so wound up with the evidence on the other that it is not logically separable”.[5]
[3]B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68(f)]; citing MacKenzie v R (1996) 190 CLR 348 (HCA); and R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [14]
[4]At [68(e)], citing MacKenzie v R, above n 3, at 368.
[5]At [68(e)], citing R v Pittiman, above n 3, at [8].
An appellate court is reluctant to reach a conclusion of inconsistency and will not usurp the jury’s function by substituting its view of the facts for that of the jury.[6] The decisive question is not whether the acquittal was reasonable, but whether the convictions were unreasonable.[7]
Appellant’s submissions
[6]At [68(d)].
[7]At [69], citing R v Pittiman, above n 3, at [13].
Mr Perez submits that the only discernible difference in the evidence between the events giving rise to the first charge in respect of which he was found not guilty, and the events giving rise to the two charges in respect of which he was found guilty, is a deduction that his conduct as seen on the CCTV footage proves that he knew by then that the banknotes were forgeries.
Mr Perez submits that in respect of the first incident, the jury clearly took the view that he either did not know that the banknote was a forgery, or that there was insufficient proof that he did have such knowledge. Accordingly, he invited the Court to view the CCTV footage of all three incidents as part of the process of deciding whether the guilty verdicts were unreasonable and whether a miscarriage of justice had occurred.
Mr Perez’s position was that when he handled the banknotes he was simply getting ready to make a relatively large purchase and he had no idea they were forgeries. He says that the deduction apparently made by the jury was not justifiable and was unreasonable.
Mr Perez submits that the evidence on the charge on which he was found not guilty and the charges on which he was found guilty were for all practical purposes identical. He says that a finding that the critical element of knowledge was indeed present in relation to the latter two charges cannot be made on the basis of what is seen in the CCTV footage, and there was no other evidence to establish a difference.
Discussion
At Mr Perez’s invitation, we viewed the CCTV footage of all three incidents. The CCTV footage from PAK’nSAVE of the first incident was grainy and unclear, but Mr Perez can be seen pulling the notes out of his pocket before handing them to the checkout operator. The CCTV footage from the Warehouse was clearer and shows Mr Perez rearranging some of the notes in his wallet before handing them to the cashier. Specifically, the CCTV shows Mr Perez pulling one note partway out, then returning it; pulling a bundle of cash out and moving a note from the top to the bottom, and another note from the bottom of the pile to the top; checking the note at the bottom of the pile; and reforming the notes into a pile before handing them over. Although it is not of clear quality, the CCTV footage from PAK’nSAVE of the third incident shows Mr Perez shuffling notes and arranging the forged $100 note so it was at the bottom of the pile given to the checkout operator.
The evidence in respect of all three incidents was, therefore, not identical. The CCTV footage from the Warehouse was quite clear. The transaction was relatively lengthy, with the cashier coming and going out of sight as she searched for and obtained the phone model obviously requested by Mr Perez. Mr Perez handled the cash in his wallet for some time and with some deliberation.
It was, therefore, open to the jury to conclude that by the time of the second incident, at least, Mr Perez must have known that he was in possession of a number of forged $100 notes, given the way he sorted out the cash in his wallet at the Warehouse. Similarly, when he returned to PAK’nSAVE the next day, Mr Perez could be seen shuffling notes. The jury may well have given the benefit of the doubt to Mr Perez in respect of the first incident at PAK’nSAVE when he pulled the notes straight out of his pocket. In those circumstances, there is logic in the different verdicts. They did not have to be the same. There is no inconsistency.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0
2
0