Simcock v The Queen

[2004] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

CA322/03

THE QUEEN

v

DONALD HUGH SIMCOCK

Hearing:31 May 2004

Coram:Anderson P
Glazebrook J
William Young J

Appearances:  J R Billington QC for Appellant

A Markham for Crown
D J White QC for O R Gilbert

Judgment:10 June 2004 

JUDGMENT OF THE COURT
ON APPLICATION FOR RECALL

[1]       On 19 May this Court delivered its judgment dismissing Dr Simcock’s appeal against conviction on three counts of fraud.  Immediately following the judgment Mr Billington QC filed a memorandum expressing concern about two paragraphs in the judgment which, he said, were unfairly critical of the conduct of Mr O R Gilbert, a Wellington barrister and solicitor.  Mr Gilbert had been a Crown witness in the prosecution of Dr Simcock but had never been a party to it or the appeal.  The Court has reconvened, as soon as it reasonably could, to consider the matters raised by Mr Billington.

[2]       On 27 May Mr Gilbert, by his counsel Mr White QC, sought leave to appear to make submissions in support of an order or direction recalling or revisiting the judgment.  Such leave was granted and the arguments in support of Mr Gilbert’s position were largely carried by his own counsel.  Mr Billington assisted the Court with incidental aspects of the hearing.  The Crown did not seek to be heard following the submissions of Mr White and Mr Billington.  It did, however, file a memorandum to assist the Court.  That memorandum confirmed that at trial the Crown had not suggested by evidence or argument that Mr Gilbert had been dishonest.  He had been called as a Crown witness but it was not necessary to the case against the appellant to allege any dishonesty on the part of Mr Gilbert and no immunity had been sought for him. Accordingly, it was never put to Mr Gilbert that any conduct on his part in relation to the backdating of the agreements was dishonest.

[3]       We do not need to traverse in this judgment the complicated facts of Dr Simcock’s frauds.  It is sufficient for present purposes to note that in respect of two of them his method involved the dishonest exploitation of agreements for sale and purchase which had been backdated.  Mr Gilbert had been a party to the backdating but we emphasise that there was no evidence to suggest that he was privy to Dr Simcock’s frauds.

[4]       Mr White submitted that paras [68] and [70] of our judgment convey, or might be taken to convey, that Mr Gilbert was dishonest in relation to the backdating of the agreements and/or a fraudulent accomplice of Dr Simcock and that this was unfair.

[5]       Whilst not necessarily agreeing with all the submissions made on behalf of Mr Gilbert we accept that the paragraphs in issue, particularly if read in isolation, could be taken to suggest that Mr Gilbert was a party to Dr Simcock's frauds.   It was not intended to suggest that.

[6]       That a Court may reject any evidence or any part of the evidence of a witnesses and draw appropriate inferences from the whole of the accepted evidence is elementary.  Broad considerations of natural justice were invoked on behalf of Mr Gilbert in support of the view that such a course is or might be unfair to a witness whose evidence has not been specifically challenged.  In the context of criminal prosecution there must be allowance for the dynamics and purpose of the process.  Those dynamics include restrictions on the ability of a prosecutor to cross-examine Crown witnesses.  Further, the fundamental purpose of criminal proceedings is to adjudicate on questions whether the defendant is guilty of the offence alleged. We see no need to explore the legal questions raised by Mr White because the present issue can be dealt with on a narrower basis.  As delivered, the judgment is capable of being read in a way which was not intended and, if read in that way, is unfairly damaging to the reputation of Mr Gilbert.   So fairness demands that we should correct it and we are prepared to do so.  In terms of what should replace the paragraphs in question, we have had the benefit of hearing from counsel.  In that way the natural justice arguments advanced by Mr White have been addressed in substance. 

[7]       For those reasons we think it appropriate to recall the judgment and reissue it with substituted paras [68] and [70] and a consequentially amended para [69] in the terms set out below (which also, incidentally, pick up a typographical error in the old para [69]).

[8]       The step we are taking is unusual.  Almost invariably a judgment stands for better or worse and if an appeal lies, that course is the appropriate remedy.  But here Mr Gilbert has no right of appeal.  If the terms of the judgment are capable of wounding him in his reputation to the extent submitted by his counsel then, in the circumstances of this case, fairness warrants an exception to the convention. In saying this we should also emphasise that the comments in the judgment which concern Mr Gilbert were intended simply to address and place in context a legal argument raised by Mr Billington which was in any event rejected.  So these comments were not in any way directly relevant to the chain of reasoning which led to Dr Simcock’s appeal being dismissed.

[9]       In the result, we order the recall of our judgment of 19 May 2004 and direct its reissue with the former paras [68], [69] and [70] deleted and the following substituted:

[68]     The substitute agreements were backdated to the dates of the original agreements.  This was addressed by Mr Gilbert, the solicitor, in his evidence and this on a basis which did not directly implicate the appellant.  But the Judge did not necessarily have to accept Mr Gilbert’s evidence and the backdating of the agreements did form part of the circumstantial material which was available for her consideration.  It is certainly the case that each of the documents expressed a wrong date on its face and it would have been open to the Judge to infer that this was on the instructions of the appellant.  We note in passing that the prospectus issued in March 1993 did not refer to the earlier contracts and, in the case of the Matauri Mara Forest, incorrectly asserted that the relevant agreement had been entered into prior to 31 December 1992.

[69]     Mr Perkins’ certificate to the effect that Rocky River transaction had been negotiated at arms length (para [29] above) was false and it would have been open to the Judge to infer that it was given on the instructions of the appellant.

[70]     The documentary evidence and the oral evidence, when considered as a whole, makes it clear that the insertion of SPRCTL into the transactions was at the insistence of the appellant and that he dictated what happened, including the prices at which the relevant transactions were to occur.  So it would have been open to the Judge to treat the backdating of the agreements and the false certificate as relevant to the issue whether the appellant had acted dishonestly.

Solicitors:
Gilbert Swan, Wellington for Appellant
Crown Law Office, Wellington for Respondent
Brandons, Wellington for O R Gilbert