The Queen v Eide - [2004] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND
CA77/04
THE QUEEN
v
JAMES CHAPMAN EIDE
Hearing:4 August 2004

Coram:Hammond J
William Young J
Chambers J
Appearances: L A Andersen and W H Henderson for Appellant

M J Grills and J L Mullineux for Crown

Judgment:8 September 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Table of Contents

Paragraph Number

INTRODUCTION [1]

BACKGROUND [4]

THE JUDGMENT OF THE DISTRICT COURT JUDGE [18]

OVERVIEW OF THE CASE [23]

THE NATURE OF THE INVESTMENT SCHEME

SOME GENERAL COMMENTS [26]

STEP ONE – INTELLECTUAL PROPERTY RIGHTS ARE
     ACQUIRED [29]

     STEP TWO – THE ON-SALE TO FCML [30]

     STEP THREE – THE FORMATION OF THE JOINT VENTURE [32]

     STEP FOUR – THE “CREATION” OF ANOTHER 50 PARTS [35]

     STEP FIVE – THE PRIVATE OFFER MEMORANDUM [36]

     SOME LOOSE ENDS [41]

     TAXATION CONSIDERATIONS [42]

REPRESENTATIONS MADE BY THE PRIVATE OFFER MEMORANDUM AS TO THE ANTICIPATED FLOW OF FUNDS [44]

WAS THE PRIVATE OFFER MEMORANDUM FALSE? [47]

DID THE APPELLANT ACT DISHONESTLY? [59]

APPEAL AGAINST SENTENCE

     THE JUDGE’S SENTENCING REMARKS [79]

     THE ARGUMENTS FOR THE APPELLANT [82]

     RESPONDENT’S REPLY [85]

     DISCUSSION [87]

RESULT [98]
Introduction
[1]       In February this year Judge Saunders, sitting without a jury in the District Court at Dunedin, found the appellant guilty on a count laid under s 229A of the Crimes Act 1961 alleging the use of a document (namely a private offer memorandum dated 2 December 1996) with intent to defraud. The Judge acquitted the appellant on an alternative count laid under s 250 of the Crimes Act in relation to the same document and a further count of attempting to obstruct the course of justice.
[2]       Judge Saunders subsequently sentenced the appellant to two years and three months imprisonment.
[3]       The appellant now appeals against his conviction and sentence.
Background
[4]       This case arises out of the proposed development of a smart card. The idea was to promote a card which could be used to make purchases with participating merchants and which would result in a proportion of what was paid being credited to the card holder’s account with a superannuation fund. The scheme was to be carried out by a joint venture.
[5]       The appellant is a former solicitor. At all material times, he was an undischarged bankrupt. Despite this disadvantage, he was able to participate in an active way in the promotion of the joint venture. Also heavily involved in the scheme were two other people, Mr Brent Gilchrist, an accountant and Mr Gordon Stewart, a practising solicitor and experienced company director. We note that Mr Gilchrist was also an investor in the scheme.
[6]       The legal structure associated with the joint venture meant that Mr Stewart had primary legal control. He was the sole director of Future Card Management Limited (FCML) which was designated as manager of the joint venture. The evidence, however, showed that on issues which were fundamental to this case, Mr Stewart acted on the instructions of the appellant. Mr Gilchrist’s involvement…

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 The Queen v Eide

Details

AGLC: The Queen v Eide [2004] NZCA 215
Case: [2004] NZCA 215
Decision Date: 8 September 2004

CaseChat Overview and Summary

In the case of The Queen v Eide, the Court of Appeal of New Zealand considered an appeal against both the conviction and sentence of James Chapman Eide. The appellant was found guilty by Judge Saunders in the District Court of using a document with intent to defraud under s 229A of the Crimes Act 1961, and was sentenced to two years and three months imprisonment. The appellant appealed against his conviction on the grounds that the private offer memorandum was not false, and that he did not act dishonestly. The appeal against sentence argued that the Judge sentenced the appellant for offending which was more serious and extensive than that for which he had been found guilty, and that the starting point of three years imprisonment was excessive.

The Court of Appeal found that the private offer memorandum was false as it represented that the investors' contributions would be used as working capital, while in reality, the appellant intended to use the funds for his own benefit. The Court also found that the appellant acted dishonestly, as he knew the representations made in the private offer memorandum were false and intended to use the funds for his own benefit. Regarding the sentence, the Court found that the Judge's starting point of three years imprisonment was appropriate, and that the appellant's sentence of two years and three months was within the range available to the Judge. The appeal against conviction and sentence was dismissed.

Orders