R v Simon CA230/04
[2004] NZCA 345
•14 October 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA230/04
THE QUEEN
v
HAYDEN PHILLIP SIMON
Hearing: 25 August 2004 Coram: Anderson P
Hammond J William Young J
Appearances: J C Gwilliam and I R Hard for Appellant B M Stanaway for Crown
Judgment: 14 October 2004
JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J
Table of Contents
Paragraph Number
Introduction [1]
The facts [5]
The conviction appealThe grounds advanced [11]
Were the bank lodgement forms and internet banking forms valuable securities for the purposes of s 246 of the Crimes Act?
[13]
Was the conviction on count 7 unreasonable? [23]
Was the conviction on count 14 unreasonable? [28]
Were the convictions on counts 15-24 Unreasonable due to lack of proof of identity? Were the convictions on counts 20-24 Unreasonable due to lack of proof of alteration of Documents?
[33]
[35]
Was similar fact evidence wrongly admitted? [39]
Did the Judge adequately direct the jury as to the defences advanced other than absence of fraud?
[42]
R V HAYDEN SIMON CA CA230/04 [14 October 2004]
Appeal against sentence [54]
Result [62]
Introduction
[1] On 2 March this year, the appellant was convicted on 23 fraud charges by a jury in the District Court at Palmerston North. He was subsequently sentenced on 21 May to a total of 15 months imprisonment. As well, he was sentenced to a further one month imprisonment, on a cumulative basis, upon the remission of fines. The total term of imprisonment imposed was 16 months imprisonment. An interim order for reparation in the sum of $6,000 was also made.
[2] The Judge granted the appellant leave to apply for home detention and deferred the commencement date of the prison sentence to enable that application to be made and considered before the appellant was required to start serving his sentence. That deferral period, however, expired on 21 July without his application for home detention having been determined and, as a result, the appellant was taken into custody.
[3] We do not know the outcome of that application for home detention which, in any event, is irrelevant to our function.
[4] The appellant has now appealed to this Court against conviction and sentence.
The facts
[5] The charges against the appellant related to him buying and selling computer parts on the internet. On the Crown case the appellant defrauded both his suppliers and his customers. The offending began in April 2001 and ended in May 2002 when the police seized his computer.
[6] The frauds in relation to customers were said to involve false representations as to his intention to supply goods. In respect of these allegations the Crown laid
13 counts (counts 1-13) under s 246(1) of the Crimes Act 1961 alleging that the appellant had, by false pretences, induced the customers to execute valuable securities. The valuable securities in question were the documents by which the victim ensured that the accounts nominated by the appellant were credited with the funds required by the appellant. In one instance (which was the subject of count 7) the victim deposited a cheque to the account nominated by the appellant. In all other cases the victim either lodged cash accompanied by a bank lodgement form or alternatively effected a transfer by an internet banking form.
[7]In the course of the trial the appellant was discharged in relation to count 10.
[8] The frauds on his suppliers involved dishonest assertions as to money paid into their accounts. In each case, the supplier provided the appellant with goods against his undertaking that he had made the required payment.
[9] These dishonest assertions were sometimes made using internet lodgement receipts which suggested that money had been paid when this was not the case. In one instance the dishonest assertion as to payment was made in a document prepared by the appellant. In respect of all this conduct, the Crown laid six counts under s 229A of the Crimes Act (counts 14-19).
[10] In other instances the appellant altered otherwise genuine internet lodgement slips to suggest that more money had been paid into accounts than was the case. This conduct resulted in the Crown laying five counts under s 266A(1) of the Crimes Act alleging the alteration of documents (counts 20-24).
The conviction appeal
The grounds advanced
[11] Mr Gwilliam for the appellant advanced the following arguments on behalf of the appellant:
1.Counts 1-6, 8, 9, and 11-13 proceeded on the erroneous basis that bank lodgement forms and internet banking forms were valuable securities for the purposes of the s 246 of the Crimes Act.
2.The conviction on count 7 was unreasonable.
3.The conviction on count 14 was unreasonable.
4.The convictions on counts 15-24 were unreasonable due to lack of proof of identity.
5.The convictions on counts 20-24 were unreasonable due to lack of proof of alteration of documents.
6.Similar fact evidence was wrongly admitted.
7.The Judge did not adequately direct the jury as to the defences advanced other than lack of an intent to defraud.
[12] As will become apparent, some of these grounds of appeal are devoid of merit and were pressed only lightly and, as the argument went on, Mr Gwilliam’s primary focus shifted to the sentence appeal. In those circumstances, we will deal only briefly with some of the factual arguments which were advanced.
Were the bank lodgement forms and internet banking forms valuable securities for the purposes of s 246 of the Crimes Act?
[13] Section 246 of the Crimes Act (which has since been repealed) relevantly provided:
246 Obtaining by false pretence
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to defraud or cause loss to any person by any false pretence, causes or induces any person to execute, make, accept, endorse, or destroy the whole or any part of any valuable security, or to write, impress, or affix any name or seal on any document in order that it may afterwards be made or converted into or used or dealt with as a valuable security.
(2) Every one who, with intent to defraud by any false pretence, either directly or through the medium of any contract obtained by the false pretence, obtains possession of or title to anything capable of being stolen, or procures anything capable of being stolen to be delivered to any person other than himself, is liable—
(a) To imprisonment for a term not exceeding 7 years if the value of the thing so obtained or procured exceeds the sum of $300:
…
[14]“Valuable security” was defined by s 2 in this way:
“valuable security” includes every document forming the title or evidence of the title to any property of any kind whatever; and also includes any negotiable instrument, bill of exchange, cheque, or promissory note.
[15] The conduct which was the subject of these counts was originally categorised by the Crown as involving the obtaining of money by false pretences and thus charges under s 246(2) were seen as appropriate. But this categorisation was unsustainable in light of this Court’s decision in R v Wilkinson (1998) 16 CRNZ 179 and, as a result, the Crown changed its ground to rely on s 246(1) and the contention that the bank lodgement and internet banking forms were valuable securities.
[16] The counts which related to bank lodgement forms and internet banking forms were all cast in similar terms. It is sufficient in this context to refer to the way in which count 1 was expressed:
1. THE CROWN SOLICITOR at Palmerston North charges that HAYDEN PHILLIP SIMON at Lower Hutt between the 5th day of April 2001 and the 9th day of April 2001 with intent to defraud, by false pretence, induced GRAHAM RUDMAN to execute a valuable security.
Particulars of Valuable Security:
A bank lodgement form depositing $580 into the Accused’s bank account.
[17] The argument for the appellant in this Court is that these forms (ie bank lodgement forms and internet forms) were not “valuable securities”.
[18] The issue raised by this ground of appeal is of limited continuing significance because s 246 has been repealed and the concept of “valuable security” does not feature in the new legislative scheme. It is also a point of no practical significance in
the context of the present case because the facts relied on by the Crown would fit well enough within s 229A and there is no reason why we should not substitute convictions under that section if we saw any merit in the argument.
[19]As it turns out we see no such merit in the argument.
[20] The offence of inducing the execution of a valuable security by fraud was introduced by statute into English criminal law in 1858 as a result of the decision of the Court for Crown Cases Reserved in R v Danger (1857) 7 Cox CC 303 and was borrowed from there by our legislature. There are some respects in which Danger corresponds to the decision of this Court in Wilkinson in that both exposed gaps in the statutory provisions relating to offences involving fraud. We are reluctant to give gap-filling legislation an interpretation which creates another lacuna.
[21] The concept of what constitutes a valuable security was construed broadly by this Court in R v Webster [1944] NZLR 882. The effect of the forms was to authorise and instruct banks as to the crediting of funds. In R v King [1991] 3 All ER 705 the phrase “valuable securities” was seen as extending to bank documents which seem to us to have been functionally identical to the forms which are relevant to this case. Although the phrase “valuable security” was defined in the English legislation in a way which differed from the former Crimes Act definition, we see the reasoning in that case as being right on point. This is because the English Court of Appeal concluded that the bank documents in question evidenced the creation and transfer of rights over property (being the choses in action represented by the various bank credits). Applying that reasoning to the present case, the forms in question here evidenced the title of the recipients (and the recipients’ banks) to the funds which were transferred (and associated choses in action).
[22] In the circumstances we are satisfied that the bank lodgement forms and internet banking forms were valuable securities.
Was the conviction on count 7 unreasonable?
[23] The complainant in relation to this count was induced by the appellant’s fraud to write out two cheques for $1,000 and to deposit them into the account of an associate of the appellant. The second cheque (which was a cash cheque) was a replacement for the first which the complainant cancelled at the request of the appellant who wanted an immediate crediting of funds to the nominated account. The appellant was convicted of inducing the complainant to execute a valuable security (being the second of the two cheques) by false pretences.
[24] Given the definition of valuable security to which we have referred, the cheque in question was clearly a valuable security.
[25] Mr Gwilliam argued that the appellant could only be guilty of this offence if his intention had been to procure the execution of a cheque as the precise intended mechanism by which he was to derive the benefit of his fraud. Mr Gwilliam contended that the evidence suggested that the appellant had really wanted money to be deposited (to avoid delays associated with the clearing of cheques) and that he could not therefore be regarded as having intentionally induced the execution of a cheque.
[26] This argument is not fully in accord with our reading of the evidence. The complainant’s evidence was that the appellant was not specific as to how the crediting of the funds was to be achieved. All he wanted was to be in a position to have immediate access to the $1,000 which was achieved when the cash cheque was deposited.
[27] In any event, the argument is unsound legally. The jury must have concluded that the appellant acted fraudulently with the intention of causing the complainant to deposit $1,000 to the account which he nominated and, in this way, to defraud him. As a matter of ordinary English usage, he thereby “induced” the execution of the cheque, even though he would have been equally happy with, or preferred, the deposit to be effected in other ways. To accept the appellant’s argument would unnecessarily open up another lacuna in the criminal law.
Was the conviction on count 14 unreasonable?
[28] This count related to the fraudulent use of a document with intent to defraud. The particulars to the count refer to a “contract dated 8 March 2002”. The document in question asserts that the appellant had deposited $270 into the complainant’s bank account and would make other payments to the complainant.
[29] In part Mr Gwilliam’s complaint about the conviction on this count rests on his contention that the document in question is not a contract. This aspect of the argument was misconceived. The misdescription (assuming that the word “contract” is a misdescription) of the document in the particulars to the count is of no significance. The only purpose of the particulars was to identify to the Court and the appellant the particular document which the Crown case was focusing on. This purpose was achieved as there is no suggestion that those involved in the case were at cross-purposes.
[30] More significantly Mr Gwilliam argued that the document was not used to obtain a pecuniary advantage; this on the basis that the complainant acknowledged that the primary purpose of obtaining the document was to have an acknowledgement signed by the appellant of his indebtedness. The appellant had earlier told him orally that money had been paid into his account.
[31]We see nothing in this point.
[32] The document was capable of being used to obtain an advantage, namely the supply of goods from the complainant and was used for that purpose. It contained an obvious and deliberate lie. The jury was required to focus on the appellant’s intention and use of the document rather than as to the significance of the lie which was told in the mind of the complainant.
Were the convictions on counts 15-24 unreasonable due to lack of proof of identity?
[33] Mr Gwilliam complained that there was inadequate evidence identifying the appellant as the person responsible for the transactions which are the subject of these
charges. He also complained that some of the evidence which was relied on was hearsay.
[34] These arguments are adequately (and indeed fully responded to) in the written argument advanced by Mr Stanaway. There was ample evidence linking the appellant with the frauds and the evidence now alleged to be hearsay consisted of business records to which objection was not taken at trial. The conclusion that the appellant was responsible for the relevant frauds was inevitable.
Were the convictions on counts 20-24 unreasonable due to lack of proof of alteration of documents?
[35] The complaint here is that there was no specific evidence that the relevant documents were altered.
[36] It is important to recognise that counts 15-19 and 20-24 involved very similar conduct. In respect of both sets of counts, the Crown case was that the appellant engaged in genuine internet banking transactions which gave him access to images of internet banking lodgement forms which he then captured on his own computer, altered and emailed in altered form to suppliers.
[37] The evidence as to the system which was employed showed beyond doubt that internet banking forms which initially appeared on the customer’s computer screen and were filled in by the customer would have matched the banking transaction which were thereby triggered. Images of the forms as they appeared on the customer’s screen could then be saved onto the customer’s computer. Someone with a reasonable degree of computer competence could alter those images. In context, there was no credible alternative to the Crown theory that someone had altered the relevant images which then were emailed to the suppliers.
[38] Further, on the evidence as a whole, the only rational conclusion available was that it was the appellant who had altered the forms.
Was similar fact evidence wrongly admitted?
[39] Mr Gwilliam complained that the Crown was permitted to lead evidence of three witnesses in relation to transactions which were not the subject of charges. Challenges to the admissibility of this evidence were rejected by the trial Judge without reasons on the eve of trial. Reasons were subsequently provided on 4 July this year (ie more than three months after the trial). There is an explanation for the delay in the reasons that were provided.
[40] We note that the Judge rejected the proposed similar fact evidence of other witnesses.
[41] We are satisfied that the evidence in question was admissible; this for the reasons given by both the Judge and Mr Stanaway. On the Crown case the appellant was engaged in what in a sense was a single continuous pattern of fraudulent conduct. The evidence of the witnesses in question went to that pattern of events, the issue of identity and also the weight which the jury might attach to some of the explanations likely to be proffered on behalf of the appellant.
Did the Judge adequately direct the jury as to the defences advanced other than absence of fraud?
[42] The main defence at trial was that the appellant had not acted fraudulently. But, as is apparent from what we have already said, other issues as to counts 7 and 14 were also placed before the jury by Mr Gwilliam. More importantly he also told us that there were identification issues which were relevant to count 15-24 and that the defences advanced at trial included the contention that there was no proof that the documents which were the subject of counts 20-24 had been altered.
[43] It is apparent from what we have said already that we see no merit in the legal premises underpinning Mr Gwilliam’s arguments as to count 7 and 14. Accordingly there was no need for the Judge to direct the jury in relation to those counts in the way now suggested by Mr Gwilliam. The position, however, is not
quite so easy in relation to the arguments in relation to the identity of the offender and whether the documents which were the subject of counts 20-24 had been altered.
[44] The Judge elected to sum up on the facts simply by reference to the closing addresses of counsel, dealing first with the case as advanced by the prosecutor and then the case as advanced by defence counsel. This can be an adequate approach where there is only one issue. But where there are a number of issues (as there were here), it is not particularly helpful. In particular, such an approach does not identify in a comprehensible and concrete way the actual questions which the jury must address and the evidence and arguments relevant to each.
[45] The problems inherent in the style of summing up were exacerbated because the Judge’s summary of the Crown and defence cases appears not to have been complete.
[46] The Judge touched on the identity issue in two passages of his summing up. The first was when he was summarising the address of the prosecutor:
[114] Then he said another defence likely to be proffered would be the issue of identity and he said to you that the Complainants dealing with the Accused were quite sure that they were dealing with the Accused, that his name may not have appeared at the bottom of every e-mail but they were nonetheless the, sure that that was the person they were dealing with. And he said to you that as a, given the pattern which existed, then the dealings were obviously all with the Accused and that the Accused had used other names to prevent people knowing who he was.
[115] He said to you that there was a number, or a couple of other names that were used a number of times. There was the person called Andrew, but he lived in Dunedin, that he had a different telephone prefix and he was supposed to be dealing with South Island sales and all of these sales were North Island sales and he referred to the evidence of Mr Taylor that he had had contact with Andrew, but Andrew had dealt with him satisfactorily. And Mr Jeckyll also had no problems with Andrew Gill so he was a person who, to the extent that he had any involvement at all, it was not involvement in any of these transactions and he was a person with whom others had had no problem. All the problems arose with persons dealing with the Accused.
[116] He then dealt with the person Clark and all we knew, Mr Holt said, is that he was a flatmate of the Accused but there was evidence that he did not have any part to play, actually, in the operation of the business and that he was not a person who was capable of operating the business and that the Accused was clear to people he spoke to that Clark was not part of the
business. But he then changed his story when he ran into difficulties, then he began to mention Justin Clark as somebody who was involved.
[117] He said to you that all of these Complainants knew who they were dealing with, they were dealing with the Accused. And Mr Holt said to you that in terms of identity, the five TradeMe names had all come from the same computer. In the interview the Accused had said that Kapiti Komputers was Justin Clark but Mr Holt then said that you should have a look at the documents in the yellow folder, there were documents, some signed Sam H and some were signed Hayden Simon and the initials were obviously the Accused in each case and that the Accused had also tried to hide behind the identity of his girlfriend. But that is all he was doing, hiding behind her identity and also forging her signature to enable him to do that.
[118] He said they were all indications of dishonesty of approach and dishonesty of intention.
[119] Then he dealt with each of the counts in the Indictment and I do not intend going through all of those counts with you. He dealt with all 23 and you will recall the arguments that he put forward in relation to those, but generally speaking, his argument was that there was a consistent pattern being operated, that there was consistent dishonesty and that in each of these cases, the Accused was the person who was doing the things and he was the person that the Complainants were dealing with and he dealt with them dishonestly and fraudulently throughout all of these various counts.
Secondly, when summarising Mr Gwilliam’s address to the jury the Judge said this:
[137] He said that you should not come to the conclusion that because he was responsible for some of the e-mail communications, that he was responsible for all of them, that was far from established.
[47] Whether the documents which were the subject of counts 20-24 had been altered received even less attention. When the Judge was dealing with the elements of the offence, he explained what is meant by altering a document. He did so, however, in abstract terms which were not related to the facts of the case. At no stage in his summing up did the Judge make it clear to the jury that the appellant denied that the relevant documents had been altered.
[48] In R v Young CA13/03 15 September 2003 this Court concluded its judgment by saying:
[55] … We note …the remarks of Lord Devlin in Trial By Jury (1966) at pp 115-116:-
All the material which gets into the ring that is kept by the rules of evidence is not of course of equal value, and the task of counsel and then of the judge is to select and arrange. In discharging this task
counsel can be helpful but not disinterested and the jury must look chiefly to the judge for directions on the facts as well as the law. It is his duty to remind them of the evidence, marshal the facts and to provide them, so to speak with the agenda for their discussions. By this process there emerges at the end of the case one or more broad questions - jury questions - which have to be decided in light of common sense.
It is perfectly clear that the summing up in this case fell well short of the standard postulated by Lord Devlin. As well, the Judge did not identify, in a clear and concise way, the actual defence advanced by the appellant. There must be few, if any, cases where so limited a summing up is appropriate. We are far from persuaded that this was such a case.
We see those remarks as apposite to the present case.
[49] We think that the Judge sufficiently drew the jury’s attention to the issue of identity which was relevant to counts 15-20 in the paragraphs which we have set out in which he referred to the Crown and defence contentions. His treatment may have seemed unbalanced given the extensive consideration of the Crown argument and the very limited reference to Mr Gwilliam’s response. It must be borne in mind, however, that on this aspect of the case, the arguments for the Crown were of overwhelming strength and it may be that Mr Gwilliam’s response was not much more elaborate than what was in the Judge’s summary. What the Judge said was sufficient to make the jury appreciate that identity was in issue albeit that further analysis of the facts would have assisted the jury in addressing that issue.
[50] We would have expected the Judge to identify to the jury that there was an issue whether the documents which were the subject of counts 20-24 had been altered. The reality, however, is that it is so obvious that the documents in question were altered that no miscarriage has resulted from the failure to do so.
[51] Accordingly we do not accept that this ground of appeal has been made out. This aspect of the case has, nonetheless, caused us some concern and additional comment may be of assistance in terms of the assistance which Judges should give juries when summing up.
[52] This eventually was a relatively simple case. In respect of the counts where the complainants were customers, the only “real” issue was whether there was an
intent to defraud. The same is true in relation to count 14. In respect of counts 15-19, the only substantial issue was identity. If the jury was satisfied that the accused was responsible for sending falsified internet banking forms to suppliers, it was practicably inevitable that the jury would also conclude that he had acted fraudulently. The position is largely the same in relation to counts 20-24 save that the appellant had also raised the hopeless argument that the documents in question might not have been altered. In the summing up the Judge did not identify these elemental issues for the jury. As a result, there was no marshalling of the evidence and arguments around those issues and this led to the problems with the summing up which Mr Gwilliam was able to identify in argument.
[53] At the outset of the trial the jury was given a booklet of jury materials which contained the indictment, summaries of the legal elements in the various charges and a list of witnesses. This would appear to have been prepared by the prosecutor. This practice (or variations of it where the elements of the charges are explained in written form by the Judge) is very common, particularly in District Court trials. But generalised and necessarily abstract explanations of the law are of much less assistance to a jury than a succinct summary (particularly if it is in writing), on a count by count basis, of the questions which the jury must address and the associated issues raised by the parties. Such written summaries are increasingly being provided by Judges to juries as part of the summing up process. If that practice had been adopted here, there would have been no scope for the criticisms made by Mr Gwilliam. More importantly, it would have helped the jury to cut through to the kernel of the case.
Appeal against sentence
[54]This case presented the Judge with some difficulties on sentence.
[55] The appellant, when sentenced, was only 20. The offending had started when he was 17. He has had little family support. Yet despite his background, he undoubtedly has the ability to lead a successful and worthwhile life. His partner’s father put up $6,000 to ensure that an order for reparation at least to that extent would be met. At the time of sentencing he was living with his partner’s parents and
working for her father. There was evidence of a shift in attitude on the part of the appellant.
[56] On the other hand, the appellant does not have a particularly good record. In December 2001 he was convicted on five charges of burglary and one charge of receiving property for which he was sentenced to periodic detention, a sentence that he was presumably serving at the time of the some of the offending now in issue. On 22 August 2003 he was convicted of a theft which was committed in July 2003, which must have been at a time when he was awaiting trial on the current charges. As well, he has a number of convictions associated with driving offences and at the time of sentencing owed $8,354 in outstanding fines and reparation.
[57] The appellant was entitled to put the prosecution to proof and to take a mass of unmeritorious technical points (which is effectively the basis upon which the defence was conducted). That he did so is not an aggravating factor for sentencing purposes. It is, however, nonetheless a troubling feature of the case. Certainly it casts doubt over the assertions that the appellant made at the time of sentencing that he intended to change the course of his life. The Judge captured this point well in his sentencing remarks:
[30] From listening to the descriptions of your activities giving rise to these offences, from observing you during the course of the Trial and from reading the pre-sentence report, I am of the view that during the course of the offending and even possibly during the course of your Trial you have been persistently dishonest, not only in terms of these offences but in your general approach to life, which approach has resulted from a degree of conceit on your part. You have been cynical which is disturbing in one so young. Now these aspects of your personality make it difficult, or make it a little difficult in any event, to accept in full your protestations of taking a new course. I hope that the things you have referred to in your letter to the Court are intended genuinely.
[58]The Judge imposed sentence as follows:
(a)On the 12 counts associated with defrauding customers, he imposed terms of imprisonment between one month and nine months, all of which were concurrent.
(b)On the remaining counts he imposed terms of imprisonment of either three months or six months which were concurrent amongst themselves but with the six month sentences being cumulative on the nine months imposed in relation to the other counts. So the effective sentence imposed on the fraud charges was 15 months imprisonment.
(c)The Judge imposed a further term of imprisonment on a cumulative basis in relation to unpaid fines which he cancelled. So the total effective term of imprisonment was 16 months.
(d)Leave was granted to apply for home detention and commencement of the sentence deferred until 21 July to permit the appellant’s application for home detention to be considered by the Parole Board.
(e)An interim reparation in the sum of $6,000 was ordered on the basis that the Judge would address the question whether there should be a more extensive order once the position as to home detention had been addressed.
[59] As is apparent from what we have said, there are some troubling aspects to the appellant’s behaviour and there must be a substantial question mark over his claim at the time he was sentenced to having turned his life around. But the limited effect of his offending must be recognised. The total loss caused to his victims was limited, in the order of $13,000 of which $6,000 is covered by the reparation order. His youth and his potential to live a worthwhile life are also material. So too is the fact that he has not previously served a term of imprisonment.
[60] Perhaps generously, Mr Stanaway conceded that the sentence, as imposed, was too severe and suggested that the criminality of the appellant would be fairly and adequately recognised if all sentences of imprisonment imposed in relation to the fraud offences were to be served concurrently.
[61] In those circumstances, we allow the appeal against sentence by directing that all sentences imposed on the fraud counts be served concurrently. The practical effect of this is that the appellant will be required to serve nine months imprisonment
in relation to the fraud counts together with another month in relation to the fines making a total sentence of 10 months imprisonment.
Result
[62] The conviction appeal is dismissed. The sentence appeal is allowed so that all sentences imposed on the counts upon which the appellant was convicted are to be served concurrently.
Solicitors:
John Gwilliam & Co, Wellington for Appellant Crown Law Office, Wellington
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