Swann v Solicitor-General - [2011] NZCA 253

IN THE COURT OF APPEAL OF NEW ZEALAND

CA652/2010
[2011] NZCA 253

BETWEEN MICHAEL ANDREW SWANN
Appellant

AND THE SOLICITOR-GENERAL OF NEW ZEALAND
Respondent

Court: Chambers, Ellen France and Randerson JJ

Counsel: Appellant in person
B F Fenton for Respondent

Judgment: 3 June 2011 at 10 a.m.

(On the papers)

JUDGMENT OF THE COURT

A The appeal is dismissed.

B There is no order for costs.
___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant Mr Swann was found guilty after jury trial of three representative charges of defrauding the Otago District Health Board and its predecessor, Healthcare Otago. The trial Judge, Stevens J, sentenced the appellant to nine years and six months imprisonment with a minimum non-parole period of four years and six months.[1] The appellant has not appealed against his conviction or sentence.
[1] R v Swann HC Dunedin CRI-2007-012-4181, 11 March 2009.
This appeal is against a judgment of Panckhurst J issued on 1 September 2010 upon an application by the Solicitor-General under the Proceeds of Crime Act 1991 (the Act).[2] In terms of that judgment, Panckhurst J ordered the forfeiture of various items of property owned or controlled by the appellant and also directed that the appellant pay a pecuniary penalty of some $6 million. The Judge also ordered under s 29(3) of the Act that certain items of property were available to satisfy the pecuniary penalty order upon the grounds that he was satisfied those items were subject to the “effective control” of the appellant.
[2] Solicitor-General v Swann HC Dunedin CIV-2009-412-213, 1 September 2010.
Mr Swann was charged jointly with a Mr Harford. The essence of the Crown case was that Mr Swann was in charge of the IT department at the Otago District Health Board (the DHB) and its predecessor. Together with Mr Harford, Mr Swann arranged for a company named Sonnford Solutions Limited (Sonnford) to be incorporated. Mr Swann and Mr Harford were then jointly involved in the rendering of invoices by Sonnford (and a predecessor entity) to the DHB which paid the amounts of the invoices to Sonnford believing the invoices to be genuine. In fact, many of them were false. Over a six year period between 2000 and 2006, a total of 198 fraudulent invoices were submitted and paid, totalling in excess of $16.9 million.
Of the total amount of the fraudulent invoices paid to Sonnford, Mr Swann received approximately 90 per cent or $15,116,516. Once received by Sonnford, Mr Swann applied the proceeds in three principal ways:
(a)$5.3 million was paid into the trust account of Mr Swann’s solicitors, Checketts McKay.
(b)$9.16 million was paid to a company named Computer South Limited (CSL). This was a company incorporated in 1997 by the appellant’s friend, Mr Peter Ibbotson, during the period from 1996 to 1999 during which time the appellant was a bankrupt.
(c)$1.99 million was used in the direct purchase of assets, most of which were luxury motor vehicles and boats.
At least six trusts were…

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 Swann v Solicitor-General

Details

AGLC: Swann v Solicitor-General [2011] NZCA 253
Case: [2011] NZCA 253
Decision Date: 3 June 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Michael Andrew Swann against a judgment issued by Panckhurst J, which ordered the forfeiture of various items of property owned or controlled by Swann and directed him to pay a pecuniary penalty of some $6 million. The appeal arose from an application by the Solicitor-General under the Proceeds of Crime Act 1991. Swann had been found guilty of defrauding the Otago District Health Board and its predecessor, Healthcare Otago, and was sentenced to nine years and six months imprisonment with a minimum non-parole period of four years and six months. The primary legal issue before the Court was whether the Judge correctly ordered the forfeiture of property and the payment of a pecuniary penalty, and if not, whether the appeal should be allowed. The Court found that Swann had been given every opportunity to defend the Solicitor-General's application in his personal capacity but deliberately chose not to do so, withdrawing at the last minute despite the availability of funding for legal representation. The Court held that the Judge correctly concluded on the evidence that the relevant facts were established to justify the making of the pecuniary penalty order. The appeal was dismissed, and there was no order for costs.

Orders