The Queen v Heslehurst - [2009] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND
CA320/2009
[2009] NZCA 444
THE QUEEN
v
MAXWELL JOHN HESLEHURST
Hearing:20 August 2009

Court:Arnold, Panckhurst and Miller JJ
Counsel:M B Meyrick for Appellant

K A L Bicknell for Crown

Judgment:29 September 2009 at 10.30 am

JUDGMENT OF THE COURT

A        The conviction on count three is quashed.
B        Otherwise the appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1]       Following trial the appellant was found guilty of 38 fraud charges and three charges against the Companies Act 1993 (taking part in the management, or being the director, of a company without leave of the Court). He was sentenced to imprisonment for a term of four years nine months. This appeal is against conviction.
[2]       The appellant raises three grounds of appeal:
(a)that the verdicts of the jury in relation to counts two and three were unreasonable, in that the evidence in support of each charge was insufficient;
(b)that a breach of s 25(d) of the New Zealand Bill of Rights Act 1990 (NZBORA) occurred and gave rise to a miscarriage of justice; and
(c)that the trial Judge erred by not exercising his discretion to discharge the jury when a document containing a reference to the appellant’s previous convictions came to the attention of jurors.

The Crown case
[3]       The fraud counts were based upon obtaining by deception or causing loss by deception, save for one count of theft by a person in a special relationship. Between February 2004 and September 2007 at various places in the North Island the appellant obtained advance payments on the faith of promises to deliver goods (mainly motor vehicles and television sets) to the complainants. Repeatedly, the goods were not supplied. The jury accepted the Crown’s contention that the appellant did not intend to honour his obligations at the time the contracts were entered into.
[4]       By contrast, counts two and three concerned advance payments made in anticipation of services to be provided by the appellant. At the relevant time (April 2004) he was involved in the operation of a debt collection business. The guilty verdicts were reached on the basis the jury accepted that at the time he received the advance payments the appellant had no intention to provide the services to which the payments related.
Was there sufficient evidence to support counts two and three?
[5]       Count two charged that on 14 April 2004 the appellant obtained a cheque for $1,640 by deception. He was staying at the complainant’s motel. She told him about a sum of $40,000 which she had lost after placing it with an investment company. The appellant said he may be able to recover the money. A cheque for $1,640 was given to the appellant by way of an advance payment for his services.
[6]       In the following months the complainant kept in touch with the appellant. She was told that he had located a person involved in the management of the investment company, Jennifer McIntyre,…

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 Heslehurst

Details

AGLC: The Queen v Heslehurst [2009] NZCA 444
Case: [2009] NZCA 444
Decision Date: 29 September 2009

CaseChat Overview and Summary

The appeal was brought by Maxwell John Heslehurst against his conviction on multiple fraud charges and Companies Act violations. The Court of Appeal of New Zealand, presided over by Arnold, Panckhurst, and Miller JJ, reviewed the appeal. The appellant's counsel, M B Meyrick, argued the appeal, while K A L Bicknell represented the Crown. The judgment was delivered on 29 September 2009. The Court quashed the conviction on count three, while dismissing the rest of the appeal.

The appellant challenged his conviction on several grounds. Firstly, he argued that the jury's verdicts on counts two and three were unreasonable as there was insufficient evidence to support the charges. Secondly, he claimed there was a breach of s 25(d) of the New Zealand Bill of Rights Act 1990, which entitles a person charged with an offence to the right not to be compelled to be a witness or to confess guilt. Lastly, he argued that the trial Judge erred in not discharging the jury when a document containing a reference to the appellant's previous convictions came to the jury's attention.

On the first ground, the Court found that while there was inadequate evidence to support the conviction on count three, there was sufficient evidence to support the conviction on count two. The Court found that the appellant lied to the complainant and had no honest intention to collect the debt when the advance payment was received.

Regarding the second ground, the Court found that the failure to interview the appellant did not infringe his right not to be compelled to be a witness, as it is not a requirement under s 25(d) of the New Zealand Bill of Rights Act 1990.

Lastly, the Court concluded that the trial Judge did not err in not discharging the jury. The Court found that the process followed by the trial Judge and the conclusion reached did not give rise to the possibility of a miscarriage of justice.

In conclusion, the Court of Appeal of New Zealand dismissed the appeal against conviction, save for the quashing of the conviction on count three. The sentence imposed in relation to the multiple offences remained unaffected.

Orders