The Queen v Ford

[2007] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/06
[2007] NZCA 173

THE QUEEN

v

JASON FORD

Hearing:20 February 2007

Court:William Young P, Randerson and Harrison JJ

Appearances:  Appellant in person

K Raftery for Respondent

Judgment:3 May 2007 at 3pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       On 1 March 2006, the appellant was convicted in the District Court after a jury trial on four counts of obtaining money by deception, contrary to s 241of the Crimes Act 1961.  He was later sentenced by Judge Bouchier to 225 hours community work.  He was also ordered to pay reparation of $5,250 to the three victims of his crimes.

[2]       The appellant’s submissions in support of his appeal against conviction were filed very late and are somewhat discursive in nature.  However, it is apparent he advances two main grounds in support of his appeal:

(a)The verdicts were wrong, unreasonable, or cannot be supported having regard to the evidence.

(b)There was a miscarriage of justice arising through trial counsel error. 

[3]       The appellant did not advance any submissions in support of his appeal against sentence.  We are satisfied that, if his convictions stand, there is no proper basis for an appeal against the sentence.  It was appropriate and no error of principle is shown.

The evidence at trial

[4]       The complainants were three young Chinese women who responded as foreign students to advertisements for accounting positions in Auckland.  Those advertisements had been placed by one of the appellant’s co-offenders, one Michael Helsby Knight.  Each of the complainants gave evidence that they contacted Mr Knight in response to the advertisements.  They were advised by him that, in return for a fee of $3500, he would find employment for them in the accounting firm of Deloittes in Auckland.  Mr Knight told them they would need to be interviewed for the positions and made appointments for them to see the appellant in premises in the Auckland Savings Bank building in Auckland.  Mr Knight told the complainants they should dress formally for the interview to have the best chance of success. 

[5]       Each of the three complainants were interviewed by the appellant in offices he had arranged to rent for the purposes of the interviews.  We will refer shortly to the content of those interviews.  Suffice to say for the present that, at the conclusion of the interviews, the complainants were referred back to Mr Knight; each paid him the agreed sum of $3,500; and he arranged for them to sign “employment contracts” with Deloittes.  Mr Knight also promised to obtain work permits for each of them.

[6]       It transpired that the employment documents were bogus and that the positions offered to the complainants did not exist.  Although the complainants sought refunds of the fees paid by them, that did not occur.

[7]       Mr Knight and the appellant were both charged along with a third man, a Mr Pukepuke.  Both Mr Knight and Mr Pukepuke had been dealt with by the time the appellant was tried. 

[8]       The Crown accepted that the appellant’s role was secondary to that of Mr Knight.  It was not in dispute that the appellant met Mr Knight at the Wairau Road Community Service Centre managed by Mr Pukepuke while Mr Knight and the appellant were undertaking community service.  After this introduction, the appellant agreed to assist Mr Knight in arranging employment for the complainants.  The appellant had previous contact with a company called Serve Corp which rented offices in the ASB Building on a month to month basis.  The appellant made the necessary arrangements with Serve Corp’s Manager, a Ms Fairweather, with whom he was previously acquainted.  Payment was to be provided by Mr Knight but the lease was taken in Mr Ford’s personal name.  The appellant personally selected the office which was one of the more expensive ones on the outside of the building with a view across the city.  The Crown case was that this was deliberately chosen to impress the interviewees.  Ms Fairweather gave evidence at trial that the appellant told her he was interviewing Asian students coming from overseas seeking jobs with accounting firms in New Zealand.  Mr Ford paid for the premises in cash although he had to be chased up for some of the money.

[9]       As to the appellant’s role, the indictment specified that the deception lay in the appellant claiming he was an employment agent and had found a position as an accounts assistant at Deloittes for each complainant.  The evidence of the three complainants followed a similar pattern but was not identical in all respects.  A Ms Xu was the strongest witness for the Crown.  She said she was told by Mr Knight that she would be interviewed by the appellant for an accounting position with Deloittes.  She was sent for interview with the appellant who she said told her he was an agent for Deloittes who was looking for staff for that firm.  She was asked about her working experience and was told Deloittes were looking for someone who could speak English and Mandarin because some of their documentation was in Chinese.  He asked her what she expected for salary and she mentioned a figure of $25,000.  The appellant told her Deloittes would pay staff a greater sum in order to encourage staff.  The interview took about an hour.  She was later contacted by Mr Knight who made arrangements for the contractual documentation she signed.  In cross-examination, she reiterated that the appellant had told her “many times” that he worked for Deloittes and was looking for staff for that firm.  She denied the suggestion put to her that this information had come solely from Mr Knight.

[10]     A second complainant, Ms Yao, said she was told by Mr Knight that he could find her an accounting position.  Mr Knight did not mention Deloittes specifically but when she was interviewed by the appellant, he told her that Deloittes wanted some Asian people to undertake basic accounting work.  The appellant did not say that he worked for Deloittes or was an agent for that firm but she believed he was working for Deloittes since he was interviewing her for employment with that firm.  The interview lasted 20-30 minutes before she was referred back to Mr Knight.  Thereafter, Mr Knight arranged for her to sign documentation for employment with Deloittes.  In cross-examination she reiterated her evidence-in-chief.  She added that Mr Knight had given her the impression that the appellant worked for Deloittes and that was her belief.

[11]     The third complainant, Ms Guan, responded initially to an advertisement placed by Mr Knight for a graduate website developer.  She had an initial meeting with Mr Knight who told her he would arrange for the appellant to interview her.  He said he had five job vacancies, one of which was as an accounting assistant.  According to her evidence at trial, no particular firms were mentioned by Mr Knight.  At the interview with the appellant, she was asked what sort of job she was looking for.  She responded that she wished to have work as a website designer or in an office position.  She asked the appellant what salary would be available and he gave her a figure of $25,000 per annum.  At trial, Ms Guan said no particular firm was mentioned to her by the appellant.  She was then told she would be contacted by Mr Knight.  In due course, Mr Knight advised her she had been successful in obtaining an accounting position and arranged for her to sign an employment agreement with Deloittes as an accounts assistant.

[12]     The appellant was interviewed by Detective Law on 4 August 2004.  The initial account given to the detective by the appellant was that he had been “leaned on” by Mr Knight to interview some people.  Using his contacts with Serve Corp, he rented space in the ASB Building.  He had been “forced” to work with Mr Knight.  Mr Knight had come to his home and told him that he (the appellant) was going to work with him.  The appellant told Detective Law he knew the work was “dodgy”.  He had interviewed about five people, all Asian, for Deloittes and he had operated in the ASB Building in the rented space for about a week before getting out.  He had not spoken to Mr Knight since.  He further stated that Mr Pukepuke had been “in on it”.

[13]     Thereafter, the appellant was interviewed by the detective at length on video.  The interview was wide-ranging in nature.  The general thrust of the appellant’s statement at interview was:

(a)He was the victim of an elaborate fraud perpetrated by Mr Knight;

(b)He did not appreciate that he was being asked to participate in a fraudulent deception;

(c)He did not represent at any stage that he was an agent of Deloittes or associated with that firm;

(d)He had only become involved after being threatened by Mr Knight;

(e)He was involved only for a matter of two or three days and upon realising what was happening, he took no further part in the matter; and

(f)He was not conducting formal interviews but was simply having informal discussions with the complainants with a view to providing a “character report” to Mr Knight.

[14]     However, in the course of the interview the appellant made some partial admissions or at least disclosed circumstances from which a jury could infer he must have been aware Mr Knight was not a legitimate businessman and that he was being asked to participate in some form of deception.  For example, when the appellant was asked whether Mr Knight told him why he was doing community service, the appellant responded that it was something to do with being a director of a company.  He disclosed later in the interview that he was aware Mr Knight was not allowed back into Australia for some reason; that he was not exactly “a solid citizen” and that he had the name “Michael Knight, the King of Cons or something”.  He had not been told this directly by Mr Knight but by persons with whom Mr Knight was associated.  The appellant also disclosed that one person present at Mr Knight’s address was a member of the Hells Angels. 

[15]     He accepted the detective’s proposition that, prior to the first interview, he was aware that Mr Knight and the people associated with him were questionable.  He also agreed it was a common sense inference to draw that the business he was conducting was also questionable.  He added that he only became involved when he was threatened by Mr Knight for not turning up on the first day of the planned interviews.

[16]     As to whether he stated to the complainants that he was representing Deloittes his response was:

JFUm, no I didn’t um, I said um, that Michael Knight was associated with Deloitte’s because that’s what he told me, you know.

PLOkay because we have a complainant who says he remembers you saying you were representing Deloitte’s, that was who the job was with.

JFUm, no um, Michael Knight told me that he represented a division of Deloitte’s or something um, and so essentially that is what would have been mentioned, I think.

[17]     On the advice of his counsel, the appellant did not give or call evidence at trial. 

First ground of appeal – verdict wrong, unreasonable or not supported by the evidence.

[18]     We are satisfied there was evidence before the jury which, if accepted, was sufficient to support the verdicts.  It was not in dispute that Mr Knight perpetrated an elaborate scam against the three complainants.  The question at trial, as identified by the Judge in her summing up, was whether the appellant held himself out as an agent for Deloittes and whether he knew, in doing so, that this representation was false in a material particular.  As the Judge correctly identified, a deception means a false representation whether oral or by conduct in which the person making the representation intends to deceive another person knowing that it is false in a material particular or is reckless as to that falsity.  There was no suggestion of any claim of right.

[19]     By his own admission, the appellant was aware the appellant had a questionable history and that he had a reputation as a con man.  He could not have supposed that he was being asked to participate in a legitimate business transaction given Mr Knight’s association with members of the Hells Angels and the threats made to him by Mr Knight to secure his participation.  The appellant agreed to take part in the interviews of the complainant for a fee and it was he who arranged the office in the ASB Building.  It was open for the jury to infer that, in order to facilitate the deception, the appellant must have known a deception was being practised on the complainants.  In order to give effect to Mr Knight’s plan, the appellant must have been informed by Mr Knight of the details of the deception.  If they did not act in concert and make the same or similar representations to the complainants, the scheme would likely fail. 

[20] As noted, the indictment stipulated in respect of each count that the appellant claimed he was an employment agent and had found a position in accounting at Deloittes. There was direct evidence in that respect from the complainant Ms Xu. In the case of Ms Yao, Mr Knight had represented he was associated with Deloittes and, by his conduct, the appellant conveyed the same impression to Ms Yao at interview. The position is less clear on Ms Guan’s own evidence treated in isolation but the Crown’s case was materially assisted by the admissions made by the appellant himself cited at [16] above, by the pattern of offending involving the other two complainants, and by the bogus employment agreements with Deloittes. There was sufficient material from the evidence as a whole from which the jury could infer that the representations made by the appellant orally and by conduct were false and known to be false.

[21]     We conclude this ground of appeal must fail.  The verdicts were not unreasonable or wrong and were open to the jury on the evidence.

Second ground of appeal – trial counsel error

[22]     The appellant did not follow the established practice of this Court where reliance is made on counsel error leading to a miscarriage of justice.  He did not file any affidavit nor did he give a written waiver of professional privilege so that his trial counsel could respond.  Nevertheless, and in recognition that the appellant appeared in person, we heard his submissions on this topic. 

[23]     He maintained first that trial counsel spent very little time with him prior to the trial.  He also complained that trial counsel did not use material he gave her.  He said counsel should have mentioned that Mr Pukepuke recommended that he became involved with Mr Knight and that he, the appellant, took this as a commendation about the character of Mr Knight.  The appellant also submitted that trial counsel should have advised him to give evidence as he wished to do.  He told us he thought it was important that he explain his position to the jury.

[24]     We are not persuaded any of these points has any substance.  Our examination of the trial record shows that trial counsel dealt with the case competently and succinctly.  She tested the evidence appropriately and rightly judged it would not be in the appellant’s best interests to give evidence in his own defence.  This was a strong Crown case and the appellant’s account of the matter was put fully before the jury in the form of the lengthy video played to the jury.  The appellant accepted that he informed trial counsel he would rely on her judgment as to whether he should be called.  In the end, he plainly accepted her advice.  In our view, that was wise given that, if had given evidence, the appellant would have been exposed to damaging cross-examination on the admissions he made to Detective Law.  Given those admissions, the proposition that he thought everything was above board lacks credibility.

[25]     This ground of appeal must also fail.

Result

[26]     The appeal against conviction and sentence is dismissed.

Solicitors:
Meredith Connell, Auckland for Crown