The Queen v Nandan
[2002] NZCA 120
•4 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 76/02 |
THE QUEEN
V
BIJAY NANDAN
| Hearing: | 27 May 2002 |
| Coram: | McGrath J Hammond J Panckhurst J |
| Appearances: | C Harder for Appellant K McDonald QC & G A Andreé Wiltens for Respondent |
| Judgment: | 4 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY HAMMOND J |
Introduction
The appellant, Mr Nandan, stood his trial in the District Court at Wellington in November 2002 on five counts of using a document with intent to defraud. The charges were laid under s.229(a) of the Crimes Act 1961. Mr Nandan was convicted by a jury on four counts. The jury could not agree on a fifth count. That count has subsequently been stayed by the Solicitor-General.
On 7 March 2002, Mr Nandan was sentenced to 16 months imprisonment. Reparation of $40,000 had already been paid by the date of sentence. The apparent delay between conviction and sentence had been to allow a period of time for Mr Nandan to attend to reparation. Leave was granted to Mr Nandan to apply for home detention. We have been told that home detention has now been refused.
Mr Nandan now appeals against both his convictions and the sentence imposed on him.
Background
The charges against Mr Nandan arose out of a real estate scam in the Stokes Valley, Hutt City. The basic thrust of this scam was to induce banks to advance 100% finance on the acquisition of property which they would never have done if the true situation had been disclosed. Mr Nandan was the central instigator in this enterprise. Four residential properties were purchased and later on sold over a period of about three months in late 1998, and early 1999. Mr Nandan purchased all four properties under a pseudonym, or in the names of associates. A sum in the region of $60-70,000 was paid for each property. The properties were then on-sold at a greater price than the purchase price – by some $20-30,000 – with the settlement dates being contemporaneous with the settlement date for the original purchases. These on-sales were documented in a sale and purchase agreement at an amount higher than that actually being paid by the purchasers.
The purpose of those transactions was to induce banks, who were not informed of the original true purchase prices, to believe that there was a margin between what they were asked to advance and the prices paid. This was a fiction. The true original prices were in fact significantly less than the amounts the banks were induced to advance on mortgage as a result of the scheme. These false prices also enabled Mr Nandan to manipulate a valuer into providing reports which overvalued the properties, and thereby induce the banks to make loans they would otherwise not have been prepared to countenance. In some instances the transactions were also supported by forged or false income certificates from a non-existent employer.
The net consequence of the frauds was that the banks were exposed to a risk of loss which they would not otherwise have incurred. The trial Judge found that, at least at the time of sentencing, financial institutions had suffered actual loss in the order of $70,000 (with potential loss still remaining in respect of the other transactions).
Mr Nandan’s associates in this enterprise were a Mr O’Neill and a Mr Aukusitino. Mr Nandan was charged jointly with Mr O’Neill on two counts; and jointly with Mr Aukusitino on the two further counts. There was one count against Mr Nandan solely. Nevertheless, the Crown regarded Mr Nandan as being the central figure in the whole enterprise, and the other two as being his associates.
On the morning of the trial, Mr O’Neill elected to plead guilty on the two counts he faced. However, there was some doubt, right up to the time of the actual arraignment, whether he would in fact so plead. The trial Judge therefore took the precaution of having Mr O’Neill arraigned in the absence of the jury. The Judge could not know what in fact might happen, and he took a prudent course. Mr O’Neill in fact pleaded guilty. He was immediately remanded for sentence. The trial then proceeded (with the jury) with respect to the counts against Mr Nandan and Mr Aukusitino.
It is central to Mr Harder’s submissions that he maintains that the trial miscarried from the time Mr O’Neill pleaded guilty. In the simplest terms, Mr Harder says that Mr Nandan thereafter suffered from guilt by association with Mr O’Neill, and that the trial was mishandled by the Judge, counsel for the Crown, and Mr Nandan’s own counsel.
The Conviction Appeals
We do Mr Harder’s submissions no disservice if we group them for convenience under four heads.
(a) Defence counsel consented to the inclusion of Mr O’Neill’s name in the indictment
It should be said at the outset that both the prosecution and the defence in the District Court were conducted by senior counsel with very distinct experience in trials of this character. At the trial Ms McDonald QC appeared for the Crown in a prosecution brought by the Serious Fraud Office. Mr Nandan’s trial counsel, Mr J R Billington QC, had twice previously defended Mr Nandan before juries, once on similar charges. It followed that Mr Nandan was no stranger to the legal process. He was also intelligent, as evidenced by the very schemes on which the jury ultimately convicted him.
The actual complaint under this head is framed this way:
There was a miscarriage of justice in that [Mr Billington] consented to a co-accused who had pleaded guilty before trial, being included in the indictment so it was then amended to read ‘jointly charged’ with Donald O’Neill.
The suggestion then is that, although O’Neill and Mr Nandan were jointly charged in counts 2 and 4, “Mr O’Neill’s name was not removed from the count and continued to be presented to the jury after he had pleaded guilty. This resulted in prejudice to Mr Nandan when he was put before the court and asked to plead on the charges before start of trial” (italics added).
The first point to note here is that there is no evidence before this court that any such “amendment” was made at all. Mr Nandan’s evidence on this appeal (which is actually contained in an affidavit in support of a bail application dated 25 April 2002) does not go that far. The only evidence we have before us is that of Mr Billington QC in his affidavit (the requisite waiver of privilege having been obtained) in which he deposes that he did not “consent” to any amendment of the indictment. Indeed, in the usual way, the prosecution had filed the indictment well before the commencement of the trial. Ms McDonald QC confirmed from the bar that she had no recollection of an amendment to the indictment as suggested by Mr Harder. An examination of the indictment put before us on the appeal (which has the usual endorsements on the backing sheet in the handwriting of court staff) contains no such record of an amendment. And the practice is that if an indictment is amended, that is done on the face of the court copy of the indictment, and that alteration is accompanied by the signature, or at the very least the initials, of the trial Judge concerned. The absence of any such written amendment strongly confirms Mr Billington’s evidence.
The concern must be, therefore, that it was the failure to remove Mr O’Neill’s name from the indictment which was objectionable. Indeed in his oral submissions, Mr Harder said the trial should have been adjourned; a fresh (amended) indictment preferred; and the Crown should (pre-trial) have advised the defence how it was going to “prove” Mr O’Neill’s conviction. Instead, the trial went ahead, the Crown led its evidence on the transactions and procured and proffered certificates of conviction with respect to Mr O’Neill. But lying behind these concerns was a basic proposition on Mr Harder’s part that (in effect) Mr Nandan was tarred (by association) with Mr O’Neill’s guilt; and that his client should have been able to thoroughly separate or distance himself from any such association.
This submission misconceives several matters. The first is the nature of the Crown case. Mr Nandan was said to be the central figure in the scam – but working through Mr O’Neill on the two counts which are in issue for the purposes of this appeal. It was therefore necessary, in practical forensic terms, for the Crown to run the details of the impugned transactions before the jury – including the particulars of the persons involved in them. It would have been hopelessly confusing – if not impossible – to somehow “blank out” Mr O’Neill’s involvement. The case necessarily had to be presented on a “whole case” basis.
Secondly, in cases where there are multiple accused, it is not at all uncommon for one (or more) accused to plead guilty at the start of the trial, and for the trial to then proceed against the remaining accused. The general practice then is to tell the jury (if they have not heard it on the arraignment) which persons have pleaded guilty, and that those persons will be dealt with by due course of law. There may conceivably be circumstances in which, as part of the general obligation of a Judge to ensure a fair trial, a trial Judge should, for some particular reason and if it is possible to do so, to endeavour to see that the position of other accused is kept from the jury. But there is no basis in this case for any such suggestion.
Indeed, and this is the third point, the converse is the case here. Mr Billington’s trial tactics on the “O’Neill” counts were very much to endeavour to minimise Mr Nandan’s involvement on those counts. The very reason he was prepared to see conviction certificates produced, is that Mr Billington was endeavouring to minimise the amount of evidence which might otherwise need to be led on those counts. In that, and with all respect to Mr Harder, Mr Billington was plainly right. The only possible defence on those two counts was (somehow) to paint Mr O’Neill’s involvement up, and Mr Nandan’s involvement down, to such an extent that Mr Nandan might escape a conviction.
This leads to a fourth point. Strictly speaking, it was unnecessary in this case to “prove” Mr O’Neill’s conviction, in a formal sense. But if it was to be done, it could have been done in a variety of ways. “Conviction” denotes a finding of guilt, or that a formal plea of guilty was entered (R v Robertson & Golder [1987] 1 QB 920). And that “conviction” can be proved by a certificate under s.27 of the Evidence Amendment (No.2) Act 1980 – or any other mode recognised by law (s.27(2)). The latter subsection preserves the common law rule that a conviction can be proved off the court record itself. (See R v McLeod, CA 61/02, 20 May 2002). The short point here is that a formal plea of guilty having been entered on the very record then in front of the trial court, the conviction of Mr O’Neill was already “proved”, to the extent it needed to be. The trial Judge could simply have drawn attention to this as a matter of record, by way of direction.
In the result, the way the trial in fact proceeded was not inappropriate. The Crown did not overreach, except that it may have led more evidence (in the form of the certificates) than it had to. The evidence led by the Crown as to the transactions, and the roles of the parties in them was appropriate, it being essential to the Crown case. Mr Billington responded appropriately in the only way which was, forensically speaking, open to the defence. And this was not a case which required some special instruction to the jury by the Judge.
(b) Lack of consultation
It may be as well to put this point of appeal in Mr Nandan’s own words, from his affidavit of 25 April 2002. He deposes:
My trial counsel without my consent agreed that the jury could hear that O’Neill had pleaded guilty. My trial counsel did not endeavour to get my consent for such a concession. When I found out I made enquiry with him. My counsel replied ‘I’ll tell you later’. If consulted I would not have consented and my instructions would have been otherwise.
Much of the background which is necessary to this point has already been traversed. It is only necessary to add that, as Mr Billington deposes, “a few minutes” after Mr O’Neill pleaded, the two (remaining) accused were “called, pleaded, and put in charge of the jury”.
Again there is a misconception as to Mr Nandan’ position. Neither Mr Nandan, nor his counsel, had any control over what Mr O’Neill elected to do. All an accused can do is to sit mute as to the course taken by a co-accused on a plea. There was therefore, no “concession” by Mr Billington, and nothing from Mr Nandan to be “consulted” on. What Mr Billington did do – and very sensibly so – was to endeavour to limit the damage done by the pleas Mr O’Neill was entitled to enter (and which rebounded to Mr O’Neill’s personal benefit on sentencing). There is no complaint that the Judge misdirected, or failed to direct, the jury on this matter.
(c) Certificates of Conviction
The point at issue here is again a simple forensic one. Mr Harder has sought (inappropriately) to elevate it into a contentious question of law.
For the reasons already given, the Crown thought it necessary (or at least appropriate) to establish that Mr O’Neill had been convicted on these two counts. The Crown in fact produced certificates of conviction under s.27(1) of the Evidence Amendment Act (No.2) 1980. Mr Billington did not object to that course being adopted, precisely because there was a forensic advantage to Mr Nandan in that the fact of Mr O’Neill’s admitted guilt was thereby known to the jury. This was consistent with Mr Billington’s general instructions, and well within the general authority of trial counsel.
In the result, to the extent that the certificates were produced, this was (at most) an excess of caution by the Crown. Necessarily, the evidence to establish Mr O’Neill’s complicity in the fraudulent transactions was led before the jury. And in any event, it was not something which redounded to Mr Nandan’s disadvantage.
(d) Defence Counsel Member of the Serious Fraud Office Prosecuting Panel
Mr Nandan’s complaint’s here is:
After trial I found out that my counsel during the time he acted for me in this matter, had been appointed to the panel of the Serious Fraud Office Prosecutors. He did not inform me or disclose that appointment to me. If I had known this during my case, I would have sought other counsel to be certain that there was no possibility of any degree of bias in favour of the informant who in this case was the Serious Fraud Office.
This is a make weight point. It is of no substance. It is commonplace in this jurisdiction for counsel – and perhaps most particularly, senior counsel – to variously prosecute and defend for and against Crown agencies. Indeed, as a general proposition, it is thought desirable that there be counsel who appear at both the prosecutors table and the defence bar. That enables them to acquire a more rounded experience and can facilitate a more balanced approach to their respective tasks. No duty of disclosure arose in this instance.
In this instance, no actual prejudice is complained of. Nor can we conceive how any could have been. Neither can there be said to have been any appearance of bias.
(e) Conclusion
There is nothing in any of the points on appeal with respect to the convictions. It follows that the conviction appeals must be, and are, dismissed.
The Sentence Appeal
The nature of the dishonesty in this instance has already been noted. The sentencing Judge correctly observed that this was not the first occasion on which Mr Nandan has lent his name to transactions of this character. The Judge considered the implications of s.6 and s.7 of the Criminal Justice Act 1985. He concluded that there were here special circumstances in terms of s.6 which required imprisonment because of the nature and extent of the offending; the need for deterrence; and the fact that the offending was of a similar character of that which had led to Mr Nandan’s previous term of imprisonment only a little time before this offending. The Judge also paid due regard to Mr Nandan’s personal circumstances. He is married, with a child, and active in his church. That could not weigh heavily in this instance. The Judge noted the pleas of guilty. He paid proper regard to the $40,000 which had been paid over in reparation. He specifically referred to the decision of this court in R v Thacker (CA 392/90, 22 March 1991), viz., the fact that the offender has made reparation should be regarded as an important consideration in determining the nature and term of any sentence. The Judge specifically noted that reparation is only one factor, and that full reparation could not have avoided a prison sentence in this case.
In the result the Judge took a starting point of 24 months. He deducted eight months for the reparation paid over, leaving an effective sentence of 16 months imprisonment.
It was strongly contended before the sentencing Judge that the sentence should however be suspended, under s.21A of the Criminal Justice Act 1985. The sentencing Judge had regard to the leading decision: that of this court in R v Petersen [1994] 2 NZLR 533. The Judge said “in particular I do not see that suspending a sentence really has any real relationship to rehabilitation or the furtherance of rehabilitation in your case. Nor do I think that the prospect of being able to continue in business and thus to make further reparation, is proper to take into account in suspending a sentence”. The judge declined to suspend the sentence.
The appeal is put on the footing that the sentence is manifestly excessive. Mr Harder argued that Mr Nandan has paid over half of the monies “lost”. Secondly, it was suggested that the offending was not instigated to deliberately defraud financial institutions, but rather to turn over house sales and make a quick profit. Thirdly, no standover tactics were used, nor was there any violence. Fourthly, it was said from the bar that Mr Nandan is “a reformed character” who has seen the error of his ways.
Ms McDonald said that the sentencing Judge had taken into account, and properly weighed, all relevant considerations. She supported the sentence as being neither inappropriate nor manifestly excessive. As to reparation, she said:
Such reparation as has been paid may well be attacked by the Official Assignee as a fraudulent practice, as the appellant was bankrupted in the Wellington High Court on 15 April 2002. Any income he is now able to earn must be accounted for to the Official Assignee, not the victims of this offending. Certainly he is not able to borrow further funds, as was originally advanced on his behalf.
We were further told from the bar that the reparation is still held in trust, pending a determination of entitlements to that sum. The lending institutions may not in fact recover from that pool of money.
The mode of sentence in this case could not be considered to have been inappropriate. Mr Nandan has an unfortunate record of dishonesty, in fact extending as far back as 1972. Many of those matters could fairly be categorised as petty crime, but they do show dishonesty over many years. Then there was the very serious incident for which he had been sentenced to imprisonment in a prior property scam. Within a relatively short time thereafter, he was back at it again. Mr Nandan needs to appreciate that these activities will be met with an increasingly firm response by the law. It certainly cannot be said that imprisonment was inappropriate.
That being the case, the issue was whether the term actually imposed was manifestly excessive. Having regard to the seriousness of the offending and the degree of Mr Nandan’s culpability, we think this sentence was within the range which was available to the sentencing Judge. Proper regard was had to all relevant factors, and a substantial reduction was allowed for the mitigating factors.
The appeal against sentence is therefore also dismissed.
Solicitors:
S Mitchell, Auckland for Appellant
Crown Law Office, for Respondent
0
0
0