The Queen v Reginald Peter Rikys

[2002] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND CA 428/01

THE QUEEN

V

REGINALD PETER RIKYS

Coram:	Keith J Tipping J Anderson J
Judgment (on the papers):	3 July 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

1. This appeal against conviction and sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  No submissions have been received by the Court but the Notice of Appeal particularises three grounds which inform a consideration of the whole case on appeal.  The relevant materials have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence and sentence

1. The appellant was charged with eight representative counts of using a document with intent to defraud under s229A Crimes Act 1961.  After a trial before a Judge sitting without a jury in the District Court at Auckland, the appellant was found guilty on each of the counts.  On 13 December 2001 the appellant was sentenced to 200 hours community service and was ordered to make reparation.

Relevant facts

1. The essential facts were not in dispute at trial.  The appellant was an academic group leader at the Commerce Faculty of the Auckland Institute of Technology.  He had signing authority in respect of internal charge documents, used to facilitate the reimbursement of legitimate expenses incurred by staff members.  Between 1995 and 1997, the accused created and signed a large number of false invoices in the name of his former wife.  He then claimed reimbursement for these invoices by completing false internal charge documents, signing the requisitioning party in either his own or fellow lecturer’s names, then authorising the documents himself and receiving the money claimed.  The appellant obtained $17,112.50 by this method during the period in question.

Grounds of appeal

1. The grounds of appeal are stated as follows:

   1.   Throughout the course of the trial the judge … demonstrated by his conduct and comments clear judicial bias and hostility towards the defendant to the extent that the defendant was unable to secure a fair and balanced hearing of his case or a fair trial.

   2.   The judge ruled as inadmissible (in error) and misdirected himself in relation to the weight and significance of several areas of evidence some of which were critical to the defences being argued for and on behalf of the defendant.

   3.   The judge erred in law both in relation to application of the Treaty of Waitangi to the case and in relation to issues of mana as the basis of honest belief and lack of mens rea as argued for and on behalf of the defendant.

2. These grounds particularly relate to the conduct of the trial during the testimony of the appellant.  That was presented in chief by his reading a 110 page prepared brief in support of a defence of absence of honest intent.  Central to that was the submission that by reason of the Institute’s treatment of him in connection with his work he believed himself entitled, in accordance with the Maori concept of utu, to equalise the balance by taking payments for himself.

Reasons

1. It is convenient to deal with the third submission first, since consideration of the legal test applied by the Judge logically precedes consideration of his approach to the facts as they emerged at trial.  We see nothing in this argument to avail the appellant in this Court.  The legal test for the mens rea component of a charge under s229A is well settled in the case law; see for recent examples R v Flyger [2001] 2 NZLR 721, R v Firth [1998] 1 NZLR 513. As with the other elements of the charge, the prosecution must prove beyond reasonable doubt that the defendant acted deliberately and with knowledge that he was acting in breach of his legal obligations. If the defendant claims that in all the circumstances he honestly believed that he was entitled to so act, the trier of fact must be satisfied beyond reasonable doubt that, contrary to this assertion, the defendant had the requisite dishonest intent. This is exactly the test the Judge set himself at paras [21] and [22] of his judgment. In light of the stance taken by the appellant at trial, the Judge appropriately recorded that he had to focus on “the subjective belief of the accused” and decide “whether or not [the appellant] must have realised that what he was doing was dishonest and that he intended to mislead”. The Judge then went on to cite the appellant’s own brief of evidence and legal qualifications as supplying proof beyond reasonable doubt that the appellant knew full well that he was not legally entitled to the money he obtained from the false internal charge dockets. It is clear that the evidence left the Judge in no doubt that the defendant did not have the requisite honest belief, whether based on the Treaty of Waitangi or otherwise, that he was entitled to act as he did. Indeed, we think the transcript of the appellant’s evidence indicates a very contrived rationalisation of what was persistent embezzlement.

2. It will therefore be clear that the second submission on appeal must also fail.  The Judge had the crucial advantage, denied to an appellate Court, of hearing the witnesses give evidence.  He recorded, in addition to his citation of aspects of the appellant’s own brief adverse to his defence, his impression that the appellant was a man whose “ego clouded his judgment” and who acted in a “devious and evasive” manner throughout.  In the Judge’s considered view, the appellant had only raised the defences that were eventually argued at trial once it became clear that an earlier exculpatory explanation would be exposed as false.  It is not for an appellate Court to second-guess matters of impression or weight.  We see nothing amiss in the learned Judge’s approach to the evidence at trial.

3. The first submission on appeal also has no merit.  The appellant has not supplied the Court with detailed submissions in support of his contention, but we have considered it in light of the trial transcript, including the Judge’s ruling on an application by counsel for the appellant that the Judge disqualify himself for bias.  We accept that the appellant and his counsel believed the defence was being prejudiced by the Judge’s response to the testimony in the appellant’s brief.  There are some indications of judicial impatience with the process but we are bound to characterise the brief as inappropriately prolix, discursive and rhetorical.  Much of the material was inadmissible for irrelevance and otherwise.  In short, criticism was justified.  The way it was criticised does not lead us to the view that there was any real possibility of bias.

4. We see no reason to disturb the sentence imposed by the Judge.  It is clearly within his sentencing discretion for a case of protracted, repetitive theft by a mature person in a position of trust.

Decision

1. As none of the challenges to the learned Judge’s decision made by the appellant have any merit, the appeal is accordingly dismissed.