R v Morley - [2007] NZCA 357

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/07 [2007] NZCA 357

THE QUEEN

v

VAUGHAN WAYNE MORLEY

Hearing: 21 August 2007
Court: Chambers, Randerson and John Hansen JJ Counsel: C G Tuck for Appellant
H D M Lawry for Crown

Judgment: 30 August 2007

Reasons: 30 August 2007

JUDGMENT OF THE COURT

A The appeal is allowed.
B The convictions are quashed. C A new trial is ordered.

R V MORLEY CA CA114/07 30 August 2007

DAn order is made that the reasons for judgment are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication in a law
report or a law digest is, however, permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant was convicted after a jury trial in the District Court on four counts of causing loss by deception contrary to s 240(1)(d) Crimes Act 1961. Judge Tompkins presided over the trial and subsequently sentenced the appellant to an effective sentence of three years imprisonment with a minimum period to be served of 18 months.

[2] While represented at various stages by legal counsel, the appellant encountered difficulties in obtaining legal aid and represented himself at trial.

[3] The essential allegation by the Crown was that the appellant agreed to buy a series of properties in 2004 and 2005 knowing that he did not have the means to complete the purchases. None of the transactions proceeded and the vendors sustained various losses in consequence. There was, the Crown said, deliberate deception of the vendors by the appellant. And, the Crown said, this occurred without claim of right.

[4] The Crown produced evidence at trial to show the appellant had been adjudicated bankrupt on three occasions in New Zealand and once in Australia over a lengthy period from 1982 until September 2004. The vendors of the properties involved in the subject transactions were called, along with the real estate agents who represented them. As well, evidence of a similar fact nature was adduced. The appellant neither gave nor called evidence.

[5] At the conclusion of the hearing of this appeal against conviction we allowed the appeal with reasons to follow. These are those reasons.

The grounds of appeal

[6] Mr Tuck submitted for the appellant that a miscarriage of justice had occurred because the appellant was entitled to legal aid and ought to have been legally represented.

[7] The evidence before this Court establishes that the appellant’s initial application for legal aid was properly declined in February 2006 because the appellant’s application showed he had sufficient resources to meet the costs of representation. However, following the entry of a judgment against the appellant he declared himself bankrupt again on 26 July 2006. He then sought a…

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 Morley

Details

AGLC: R v Morley [2007] NZCA 357
Case: [2007] NZCA 357
Decision Date: 30 August 2007

CaseChat Overview and Summary

The appeal was heard in the Court of Appeal of New Zealand, with the appellant Vaughan Wayne Morley appealing against his convictions. The appellant was convicted on four counts of causing loss by deception, contrary to the Crimes Act 1961. The essential allegation by the Crown was that the appellant agreed to buy a series of properties knowing he did not have the means to complete the purchases, resulting in losses for the vendors. The appeal raised issues concerning the adequacy of legal representation, the lack of particulars provided by the Crown, the late disclosure of documents, and the admissibility of similar fact evidence.

The court found that the appellant was entitled to legal aid and should have been legally represented. The absence of legal representation significantly disadvantaged the appellant, particularly in terms of his ability to effectively present his case, challenge the particulars provided by the Crown, and counter the similar fact evidence. The court concluded that there was a real risk of a miscarriage of justice in the circumstances of this case, and therefore quashed the convictions on all four counts and ordered a retrial.

The court's reasoning was based on the fact that the appellant's lack of legal representation led to significant disadvantages, including the absence of explicit particulars of the deceptive words or conduct relied upon in respect of each count, the late disclosure of over 550 pages of written material to the appellant before the trial, and the admissibility of similar fact evidence. The court also noted that the appellant's inability to effectively present his case and call a witness who could have assisted him further contributed to the risk of a miscarriage of justice.

In conclusion, the Court of Appeal of New Zealand allowed the appeal, quashed the convictions, and ordered a new trial. The reasons for judgment were not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial, but publication in a law report or a law digest was permitted.

Orders