R v N

[2022] NZHC 2120

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL FURTHER ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-044-72

[2022] NZHC 2120

THE QUEEN

v

N

Hearing:

8 August 2022

Counsel:

S S McMullan and H F Brown for Crown

A F Pilditch QC and B Z C Shen for Defendant

Judgment:

9 August 2022

Reasons:

25 August 2022

REASONS JUDGMENT OF BREWER J

[Section 147 applications]

This judgment was delivered by me on 25 August 2022 at 10 am

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell (Auckland) for Crown Fletcher Pilditch QC (Auckland) for Defendant

R v N [2022] NZHC 2120 [9 August 2022]

Introduction

[1]                 On 9 August 2022, in a results judgment,1 I dismissed the defendant’s application for discharge on charges 1, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14 and 15 (the charges).

[2]I now give my reasons.

Background

[3]                 The defendant stood trial on 49 charges of dishonesty. The Crown alleged that, while Administration Manager of a rest home, the defendant dishonestly obtained the rest home’s money. The principal means by which he did that was through the use of the rest home’s cheques.

[4]                 The charges are the same: dishonestly using a document.2 They all relate to rest home cheques signed by the defendant’s wife. Each charge is expressed:

That [the defendant] together with [the defendant’s wife], between [a date range], used a document dishonestly and without claim of right, with intent to obtain a pecuniary advantage.

[5]                 Particulars give the payee and, for those of the charges which are representative, the number of cheques.

[6]                 Charge 1 related to 97 cheques made out to cash and charge 3 related to 179 cheques made out to the defendant. The rest of the charges related to cheques where the payees were not, it was alleged, connected to the rest home and hence the cheques were used for the pecuniary advantage of the defendant.3

Application for discharge

[7]                 The issue was straightforward. Mr Pilditch QC submitted that because the cheques were signed by the defendant’s wife there was insufficient evidence that the cheques were “used” by the defendant.

1      R v N [2022] NZHC 1950.

2      Crimes Act 1961, s 228(1)(b).

3      The jury found the defendant not guilty on charges 1 and 13 and guilty on the rest of the charges.

[8]                 There was no direct evidence of the defendant personally using any of the cheques, and no direct evidence that he indirectly used any of the cheques by causing them to be drawn up and/or signed. The Crown could not, Mr Pilditch submitted, exclude as a reasonable possibility that the cheques were used by the defendant’s wife independently.

Discussion

[9]                 The test for discharge of a defendant on a charge during a jury trial is well- settled. A Judge may dismiss a charge if4 –

… the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

[10]             It follows that questions of credibility and weight must, in all but exceptional cases, be determined by the jury. And, for the Judge’s analysis, the Crown’s case must be taken at its highest.

[11]             I accepted Mr Pilditch’s submission that there was no direct evidence that the defendant used any of the cheques. And there was no direct evidence that he caused any of the cheques to be drawn and/or signed. Further, there was no direct evidence of criminal collusion between the defendant and his wife in relation to the use of the cheques.

[12]             However, the jury is required to consider the whole of the evidence and not just its component parts. In my view, the evidence as a whole provided a basis for the jury to determine the issue of the defendant’s use of the cheques:

(a)The evidence of Mr Single5 was to the effect that none of the cheques were authorised payments on behalf of the rest home.

(b)The   respective   roles   of  the  parties.     The defendant was the Administration Manager. His job was to manage the accounts of the

4      Criminal Procedure Act 2011, s 147(4)(c).

5      Mr Single was a director of the rest home company and its greatest shareholder. He reconstructed the rest home’s accountancy records – which had gone missing – and gave evidence about the running of the rest home.

rest home, to draw cheques to pay rest home bills and to record all payments in the rest home’s electronic ledgers. The defendant’s wife was the nurse manager. Her responsibilities were to the caregiving side of the business. As a director (which, over the period of the charges, the defendant was not) she had the authority to sign cheques. There was evidence she would, on occasion, sign cheques in blank for use by the defendant.

(c)There was a pattern of activity. The charges cover cheques for cash, cheques to the defendant and cheques to third parties. That pattern continued from 2008 when the defendant became a director and got authority to sign cheques. Importantly, from that time the defendant’s wife stopped signing cheques almost entirely. Some of the third parties who received cheques signed by the defendant’s wife also received cheques signed by the defendant.

(d)The defendant was responsible for coding cheques for the rest home’s accounts to show who had been paid. There was clear evidence that he miscoded them. That is to say, subject cheques signed by his wife for cash, to the defendant or to third parties were never coded as having been made payable to cash, the defendant or the actual third parties. It is true that reconciliations are not available for the whole of the period of the charges, but that was the pattern that continued when the defendant took over signing cheques.

(e)The period of the charges. The charges address a period from 11 April 2005 to 6 August 2008. The defendant produced rest home accounting records for three financial years over this period. He coded 335 cheques signed by his wife over this period for inclusion in the rest home’s records which are covered by the charges, 179 of which were made out to himself. There is evidence from which the jury could infer that he miscoded those cheques because he knew they were fraudulent and so as to conceal that fact.

[13]             My conclusion was that there was sufficient evidence from which the jury could reasonably conclude that the defendant, directly, or indirectly through his wife, used the cheques in question and used them dishonestly.

[14]             In respect of charges 1 and 3, I was mindful that to convict the jury need be unanimous on only one of the particularised cheques.

[15]             For these reasons, I dismissed the application to discharge the defendant on the charges.

Brewer J