The Queen v Michael Organ
[2002] NZCA 117
•31 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA19/02 |
THE QUEEN
V
MICHAEL ORGAN
| Hearing: | 30 May 2002 |
| Coram: | Elias CJ Gault P John Hansen J |
| Appearances: | K Raftery for the Crown S D Cassidy for the Appellant |
| Judgment: | 31 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J |
Following a lengthy jury trial, the appellant was found guilty of charges of using a document, theft of a yacht, valued between $35,000 and $45,000, forging a contract of sale, uttering that contract of sale, and two charges of attempting to pervert the course of justice. He was acquitted on a charge of theft of items from the yacht, and a further charge of attempting to pervert the course of justice.
This appeal is brought on two grounds. The first is the not guilty verdict on Count 6, being a charge of attempting to pervert the course of justice, was inconsistent with convictions in Counts 1 and 2, being the charges of using a document and theft. The second ground is that the trial Judge misdirected the Jury when dealing with a question on colour of right.
Background
The appellant had entered into an arrangement with a Mr Dunn whereby he rented commercial premises in Karangahape Road, in which he operated a sex shop. Despite the fact that the property was owned by Mrs Dunn’s mother, whose estate was under the control of a manager, the rent was paid to Mr Dunn on a two weekly basis. There was no tenancy agreement.
When the mother died, the payment for rent stopped. Some time in the following year the estate’s solicitors contacted the appellant with regard to the legal position, and negotiations were entered into relating to a formal lease. They were carried out over almost a year, between January 1998 and January 1999. At no time during that period did the appellant pay any rent. The solicitors sought mesne profits, but these were not paid. Eventually, the appellant signed a lease, which was forwarded to the solicitors on certain terms, which were not acceptable to the estate. As a consequence, the premises were repossessed and the locks changed.
This set in train a series of events, that can be described as the appellant attempting to take revenge against Mr Dunn who he blamed for his troubles. He did this by taking Mr Dunn’s yacht. The extent of the planning, and the sophistication involved in these frauds can best be seen by reference to the Judge’s sentencing notes at page 3:
“Firstly you arranged for your friend Simon Stockley to scan a signature from a receipt signed by Mr Dunn into his computer and reproduce it on a transparency. You then, with the use of a light box, forged that signature onto a piece of paper by tracing it. You had Mr Stockley signed (sic) that as a witness. You retained that piece of paper and then you arranged for Mr Stockley to prepare affidavits for himself and Mr Harper and went with them to the Court on 2nd November and had them swear those affidavits. Those affidavits deposed to a meeting between you and Mr Dunn, whereby the business of the sex shop was swapped for the boat. Both Mr Harper and Mr Stockley gave evidence that no such meeting took place.
Prior to the swearing of the documents, you had obtained from the New Zealand Boat Registration Company a form, which you completed and forwarded to that company, to obtain a certificate showing you as the owner of the yacht Matia. You set up a number of incidents to verify your ownership of the yacht. You arranged for Mr Stockley and Mr Harper to go down to the yacht on one occasion to take photographs of you working on the yacht. This was foiled when the owner was already on the yacht. You took another group of people onto the yacht to inspect the engine. You took care to point out the certificate that you had placed on the yacht to one of these people. A week or so later you removed the yacht from it moorings and took it to another mooring. Mr Dunn discovered the loss and repossessed the boat within a very short length of time.”
Inconsistent Verdict
A guilty verdict on one charge may be impugned as unsafe if it is inconsistent with an acquittal on another charge. The test is whether the verdict demonstrates that no reasonable Jury, applying its mind properly to the facts of the case, could have arrived at the two different verdicts: R v Irvine [1976] 1 NZLR 96 (CA).
The three charges of perverting the course of justice were allegations that the appellant attempted to pervert the course of justice by causing affidavits relating to the sale of the yacht to be typed and signed by John Phillip Dorn, Anton Lee Harper, and Simon Stockley respectively. Stockely and Harper had already faced charges in relation to their actions and pleaded guilty. They acknowledged the affidavits that they had signed were false. Evidence was given that although Stockley typed the affidavits on his computer, their contents had been dictated by the appellant.
Dorn gave evidence for the defence, and maintained that the evidence contained in his affidavit was true. Mr Cassidy’s submission was the Crown case was conducted on the basis that it was the appellant who was responsible for having the affidavits typed and signed, and it was he who used them to try and convince the Police of his right to the yacht. Mr Cassidy said the real focus at trial was the truth, or otherwise, of the contents of the affidavits, and not the physical preparation and signature of the documents.
In his affidavit, Mr Dorn said he witnessed the complainant offer the yacht as payment for a business, and that the appellant accepted the offer. Mr Cassidy submitted that to return a verdict of not guilty in relation to Count 6 the Jury must have:
“(a)Accepted that there was an offer and that the offer was accepted by the appellant; or
(b)Had reasonable doubt as to the above; and in either case,
(c)Rejected the complainants evidence that there was no deal.”
He submitted the defence in relation to Counts 2 and 6 was essentially the same, and relied on the same evidence, i.e., there was an agreement in which the boat was traded for a business. Accordingly, the appellant did not attempt to pervert the course of justice by producing the Dorn affidavit, because he believed the contents to be true, in that Mr Dorn was present and witnessed the agreement. In relation to the theft charge, because there was this agreement, the yacht was taken in the honest belief that the appellant was entitled to do so.
It is important to set out the precise wording of Count 6:
“6 THE said Crown Solicitor further charges that MICHAEL DANIEL ALBERT ORGAN between the 1st day of January 1999 and 4th day of November 1999 attempted to pervert the course of justice by causing an affidavit relating to the sale of the Sailing Keel yacht MATIA to be typed and signed by JOHN PHILIP DORN.”
It is to be seen that the mischief complained of are the actions of Mr Organ in having Dorn type and sign a false affidavit. While we accept the focus at trial may well have been on the falsity, or otherwise, of the contents of the affidavit, that is not the end of the matter.
The charges in relation to Harper and Stockley are couched in exactly the same terms as Count 6. However, the evidence in relation to three charges is quite different. In relation to Stockley, at page 67 of the transcript he was asked:
“How was that affidavit created?….I typed it up on my computer, and then Michael Organ dictated the text to me.”
In relation to Harper, he was asked at page 125:
“Are you able to tell the Court how was that affidavit created?….This one here was basically created on a computer of Simon Stockley’s Apple McIntosh, as far as I’m aware. I was in a totally different room, so as far as I’m aware it would have just been basically narrated by Michael and then typed out by Simon as he was the one who was fluent with the computer and then as far as I’m aware that was printed out on this laser printer, he had a Hewlett Packard laser printer of some description.
Who supplied the wording for the affidavit?…..Michael as far as I’m aware, it looks like Michael’s wording as Simon wouldn’t use the type of words as encumbrances, caveat or lien.”
However, Mr Dorn was not asked in evidence in chief who created the document, and his cross examination by Crown counsel concentrated on the truth of the contents of the document.
The matter was dealt with by the learned trial Judge at page 366 of the case on appeal. She directed the Jury as follows:
“To pervert the course of justice means to adversely influence the course of justice. Here the Crown says that the accused caused the affidavit signed by John Dorn, Anton Harper and Simon Stockley to be typed and signed. That these documents were false and were an attempt to avoid liability for the crime of theft. To prove this charge the Crown must prove first that the documents were false. Secondly, that the accused caused them to be typed and signed. Thirdly, that the purpose for those documents being typed and signed was to facilitate the accused’s claim for ownership of the ‘Matia’ and prevent him being charged with theft. You must apply this test for each of the three charges individually and of course it is open for you to bring in different verdicts on different charges.” (Emphasis added).
So although the focus at trial may well have been the truth of the contents of the affidavits, the Judge directed the jury that an essential element of the charge required the Crown to prove that it was the accused who caused the document to be typed and signed. No evidence relating to this was adduced from Mr Dorn. The appellant does not appear to have made a formal admission that he caused the documents to be typed and signed. Nor did the Judge direct the jury that they could accept this element of the charge as being conceded by the appellant, or proved on the evidence. It was a matter the jury needed to be satisfied of beyond reasonable doubt.
We are satisfied that a reasonable Jury, applying its mind properly to the facts could well have arrived at the different verdicts. Clearly, there was little or no evidence that could have satisfied the second element of the offence set out in paragraph 16 above.
However, there is the further point arising from the decision of this Court in R v H [2000] 2 NZLR 581. At 588, Keith J., in delivering the decision of the Court said:
“[27] To summarise to this point, a guilty verdict which is apparently inconsistent with an acquittal might be held to be not “unreasonable” if:
• the verdict is not so inconsistent as to call for interference by an appellate Court (Archbold); or
• if the record contains evidence for a proper conviction and there is no need to defer to the acquittal (Supreme Court of Canada in Koury v R); or
• the innate sense of fairness and justice of the jury might properly have been applied in reaching the verdict of acquittal, for instance to avoid an unnecessary double conviction (King CJ in R v Kirkman, approved by the High Court of Australia in MacKenzie v R; see the related suggestion by Sir Francis Adams mentioned in Irvine).”
In our view, there was ample evidence to enable the Jury to reach guilty verdicts on Counts 1 and 2. The complainant, Mr Dunn, gave evidence that he did not enter into a contract of sale with the appellant concerning his yacht the “Matia”. A Mr Lopes, a friend of Mr Dunn, gave evidence that he was not aware of any intention by Mr Dunn to sell the boat in December 1997. He said the boat was “his baby in effect”. There was also the evidence from Messrs Stockley and Harper that they never witnessed an agreement between the appellant and Mr Dunn, and that the appellant had asked them to falsely swear that such an agreement had been made.
In our view, the record contains “evidence for a proper conviction”, and nothing has been put forward to show the need to defer the convictions on Counts 1 and 2 to the acquittal at Count 6, particularly in the light of the matters addressed in paragraphs 11 to 18 above. The verdicts are not inconsistent.
Colour of right
The jury returned and asked the Judge a question relating to colour of right. The question and answer can be found at page 380 of the case on appeal. The record notes an inaudible comment from the foreman. Counsel are in agreement that what occurred was that the Judge asked the jury “Does that help?”, and following most jurors shaking their heads the foreman responded “No, may I ask a question”. The Judge responded “Yes”. The foreman then asked “Is there colour of right if you take something because you believe there has been an injustice?” The answer is recorded, and it was:
“It has got to be an honest belief. No. Thank you.”
The jury were asking whether a colour right would lie if the yacht was taken simply because the appellant believed there to have been an injustice. In our view the answer to that question was favourable to the appellant. From it, the jury could well have concluded that if it was the appellant’s honest belief he had a right to possession of the yacht because of a feeling of injustice over something done to him, this would give rise to a colour of right, whether or not that injustice was an infringement of his legal rights. This can be contrasted with the correct position which is whether the appellant had an honest belief that he was entitled to take the yacht as a matter of law. If anything, the answer was more generous to the appellant than it needed to be.
Appeal against sentence
It was submitted by Mr Cassidy that a sentence of three years imprisonment was too long for a first offender. However, the passage set out above from the sentencing notes makes it clear that this was premeditated, planned, sophisticated and cynical offending. The appellant had outlined his plan of revenge to the witness Stockley before he started to put it into effect. Following eviction, Mr Stockley gave evidence of a discussion over a cup of coffee in early 1999. In it, the appellant told Mr Stockley that he intended to take Mr Dunn’s yacht in retribution for his taking of the sex shop. It is clear that he then went to considerable lengths to carry out this plan, and involved Messrs Stockley and Harper in his deceit. It is apparent that there were also civil proceedings in existence relating to the disputes over the Karangahape Road property. The false affidavits were used not only to convince the Police that the appellant was legally entitled to the yacht, but also in the course of his civil dispute with Mr Dunn. It must be of concern that the legal process was used in such a cynical and manipulative manner.
This Court in R v Hillman (CA14/92 14 May 1992) noted that any attempt to dissuade a witness from giving evidence strikes at the heart of the administration of justice, and must be met with a stern response. Mr Cassidy sought to lessen the appellant’s culpability by pointing out that cases such as Hillman involve violence or the threat of violence. The offending here is more insidious, in that the appellant conceived an elaborate and calculated plan. He went further than dissuading witnesses to give evidence. Not only did he have witnesses swear false affidavits, he involved them in his machinations. The documents were used not only with the Police, but also in civil court proceedings. When this is coupled with the actual theft of the yacht, and the failure to acknowledge guilt, a starting point of 4 years cannot be said to be manifestly excessive. Given the only mitigating factors were the lack of previous convictions, and his psychological problems, the 1 year discount was appropriate.
Both the appeal against conviction and sentence are dismissed.
Solicitors
Crown Solicitors, Auckland for the Crown
Epsom Practice Defence Lawyers, Auckland for the Appellant
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