R v Allen - [2005] NZCA 62

IN THE COURT OF APPEAL OF NEW ZEALAND
CA274/04
CA316/04
THE QUEEN
v
DONALD EUGENE ALLEN AND
STUART BUCKLAND
Hearing:9 March 2005

Court:Anderson P, Heath and Doogue JJ
Counsel:R M Mansfield for Mr Allen

D S Niven for Mr Buckland
P J Davison QC and A M Killeen for Crown

Judgment:7 April 2005

JUDGMENT OF THE COURT

A MR ALLEN’S APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
B MR BUCKLAND’S APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS
(Given by Heath J)
Table of Contents

Para No

Introduction   [1]
The nature of the fraud on the public  [10]
The nature of the fraud on the bank  [21]
Grounds of conviction appeals  [25]
Grounds of sentence appeal  [27]
MR ALLEN’S CONVICTION APPEAL
(a)The evidential issues[29]
(i)Admission of evidence of Mr Dofelmier  [30]
(ii)The Dr van Lin video tape  [49]
(iii)Admission of email communications  [52]

(b)Should the jury have been discharged?  [59]
(c)Judge’s comment on Mr Allen’s failure to give evidence      [69]
(d)Mr Buckland’s conviction appeal – counsel error                  [81]

SENTENCE APPEALS
(a)Mr Allen’s appeal  [89]
(b)Mr Buckland’s appeal  [96]

CONCLUSIONS  [100]
Introduction
[1]        Mr Allen and Mr Buckland each appeal against their convictions and the sentences imposed in consequence of guilty verdicts delivered by a jury on fraud charges.
[2]        Mr Allen and Mr Buckland, together with Mr and Mrs Christie, were tried before Judge Joyce QC and a jury in the District Court at Auckland. The trial arose out of an investigation by the Serious Fraud Office. The four accused and Mr Palmer were named in the indictment as co-conspirators. However, Mr Palmer was not before the Court at trial; he was otherwise detained in the United States of America. The trial was lengthy, starting on 16 February 2004 and concluding with the delivery of verdicts on 16 April 2004.
[3]        Each accused was found guilty of conspiring, between 15 August 1999 and 16 August 2001, to defraud members of the public. Each was convicted.
[4]        Mr Allen faced two additional, but alternative, charges. They were (a) using a document with intent to obtain a pecuniary advantage and (b) obtaining a loan by falsely representing his financial position and the purpose for which the loan moneys were to be used. Those frauds were allegedly committed after the conclusion of the conspiracy and in respect of a different victim, ASB Bank Ltd. Mr Allen was convicted on the charge of using a document with intent to obtain a pecuniary advantage. It was unnecessary for the jury to give a verdict on the alternative charge of misrepresentation.
[5]        Although Mr and Mrs Christie appealed against conviction and sentence, they subsequently abandoned their appeal.
[6]        At trial each accused accepted that the conduct in issue on the conspiracy charge amounted to a fraud on the public but asserted that it was Mr Palmer who perpetrated the fraud. The accused alleged that they too had been duped by Mr Palmer.
[7]        On appeal,…

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 R v Allen

Details

AGLC: R v Allen [2005] NZCA 62
Case: [2005] NZCA 62
Decision Date: 7 April 2005

CaseChat Overview and Summary

The appeals against conviction and sentence by Donald Eugene Allen and Stuart Buckland were dismissed by the Court of Appeal of New Zealand. The Court held that there was sufficient evidence to support the jury's verdict that both Allen and Buckland were involved in a conspiracy to defraud the public through a fraudulent investment scheme. The evidence included expert testimony, video recordings, and email communications which were deemed admissible by the trial judge. The Court also found that the trial judge's comments on Allen's decision not to give evidence and the handling of certain documentary evidence did not prejudice the outcome of the trial. As for the sentences, the Court found that the cumulative sentences imposed on Allen were appropriate given the nature and seriousness of the frauds committed, and the sentence imposed on Buckland was consistent with that given to the other co-conspirators.

Orders