The Queen v Anita Faisandier - [2000] NZCA 231

IN THE COURT OF APPEAL OF NEW ZEALAND

CA185/00

THE QUEEN

ANITA FAISANDIER

Hearing:	27 September 2000
Coram:	Gault J Ellis J Robertson J
Appearances:	R M Lithgow for Appellant S P France and K White for Crown
Judgment:	12 October 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

The appellant was convicted following trial by jury in the District Court at Wellington on 20 counts of using a document with intent to defraud. She was sentenced to imprisonment for 3½ years. She now appeals against both her conviction and sentence. The facts of the offending need be stated only briefly for the purpose of this judgment. The charges involved the appellant manipulating various bank accounts to create artificial credits which she then drew upon knowing that there were not the funds available to meet her cheques. There can be a time delay of some days in the banking system between the drawing of a valueless cheque and its eventual dishonour. The appellant, knowing of this time delay, took advantage of it by writing valueless cheques between various accounts she controlled at different banks. This practice is known as "cheque kiting".
The charges relating to activities earliest in time were directed to the drawing of cheques, knowing there were insufficient funds to meet them, for the purpose of paying personal expenses, primarily those owing on an American Express account, and for some business expenses. In these early instances matters were eventually cleared as a result of the provision of funds by the appellant's husband, it seems as part of a settlement of the division of matrimonial property.
The majority of the charges were directed to matters in the second half of 1997. The appellant established a company, Travel Incorporated Ltd. This was said to carry on business running a travel club generating income from commissions on travel expenses. There was little genuine business and the appellant fabricated records indicating considerable business for the purpose of raising a substantial overdraft facility. She also engaged in massive cheque kiting partly to give the impression of business activity and partly to generate funds for personal and other expenses. Hundreds of cheques were written, many for substantial amounts. Some were dishonoured, some were met from credit balances created by the deposit of other cheques. The cheques were written and presented with the intention that they be accepted and acted upon when the appellant well knew that there were no genuine funds available to meet them.
The total face value of the documents to which the charges related was between $40.6 and $40.7 million. When matters were brought to an end the actual loss incurred primarily, but not solely, by one bank amounted to $833,500.
The lengthy trial followed a Serious Fraud Office investigation. The appellant did not give evidence but evidence was given on her behalf from a handwriting expert, the Secretary of the Wellington District Law Society and from her mother.
Much evidence at the trial was directed to the reality…

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.

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Details

Case: [2000] NZCA 231
Decision Date: 12 October 2000

CaseChat Overview and Summary

The case of The Queen v Anita Faisandier involves an appeal by the appellant, Anita Faisandier, against both her conviction and sentence. Faisandier was convicted in the District Court at Wellington on 20 counts of using a document with intent to defraud, following a trial by jury. The appellant was sentenced to imprisonment for 3½ years and now appeals against both her conviction and sentence. The charges related to Faisandier manipulating various bank accounts to create artificial credits which she then drew upon, knowing that there were not the funds available to meet her cheques. This practice is known as "cheque kiting".

The primary legal issue in the appeal against conviction is whether there was a breach of section 366 of the Crimes Act 1961, which prohibits adverse comment on the accused's silence. The court found that there was no breach of this provision, as the comments made by the Crown counsel were directed at the absence of evidence to support the appellant's claims, rather than her failure to give evidence as a witness. The court held that the Judge's conclusion that the comments did not constitute a breach of the prohibition was not wrong.

The appeal against sentence was advanced on two grounds: first, that the sentence imposed was excessive, and second, that greater allowance should have been made for a period of pre-conviction detention. The court found that the starting point for sentence of four years was within the range open to the Judge and was not persuaded it should be disturbed. However, the court was not persuaded that the allowance made by the Judge for pre-conviction detention was sufficient, and accordingly, the appeal against sentence was allowed, a sentence of imprisonment for 3½ years was quashed, and there was substituted a sentence of imprisonment for three years.

The final orders of the court were that the appeal against conviction was dismissed, the appeal against sentence was allowed, a sentence of imprisonment for 3½ years was quashed, and there was substituted a sentence of imprisonment for three years. The appellant, who was on bail, must surrender to the police within 24 hours of the date of this judgment.

Orders