The Queen v Turner

[2006] NZCA 212

IN THE COURT OF APPEAL OF NEW ZEALAND

CA511/05

THE QUEEN

v

RODERICK BRYAN TURNER

Hearing:27 July 2006

Court:Robertson, Goddard and Gendall JJ

Counsel:J R Rapley for Appellant

K J Beaton and K E Salmond for Crown

Judgment:11 August 2006 at 10.30 am

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

Introduction

[1]        In September 2005, the appellant was convicted by a jury in the District Court at Christchurch on two counts of altering documents with intent to defraud.  He was sentenced to ten months’ imprisonment with leave to apply for home detention.  The appellant appeals against both conviction and sentence.

[2]        The appeal against conviction is based upon the grounds that the trial judge misdirected the jury in four respects as a consequence of which a miscarriage of justice has occurred.  The appeal against sentence is based upon the ground that it was manifestly excessive.

Background

[3]        The appellant’s mother was the registered proprietor of four flats in Christchurch.  They were developed between 1995 and 1997 and sold.  She was described in the Agreement for Sale and Purchase as the vendor, and her solicitors accounted to her as such in their Settlement Statement.  Because of a failure to pay GST resulting from the sale of the flats she was adjudged bankrupt. 

[4]        The appellant brought civil proceedings against the real estate company, and the land agent, who acted on the sale of the properties.  The proceedings were in the appellant’s sole name because, as a bankrupt, the mother was unable to commence proceedings.  In order to establish standing, the appellant altered two documents, namely the Agreement for Sale and Purchase and the Settlement Statement provided by his mother’s firm of solicitors.  The alteration and forgery was to describe the appellant’s mother as vendor “on behalf of” a partnership.

[5]        After the altered documents were created and photocopied, the originals in the appellant’s possession were destroyed.  The photocopies of the altered document were then tendered by the appellant in the hearing of the civil case against the real estate agents which proceeded to judgment. 

[6]        The forgeries went unnoticed until two or three days before the civil proceedings when originals were found to be held by the solicitors who acted on the transaction.  Despite this, the appellant pursued his claim and gave, what the Judge found to be, false evidence.  Judge Sommerville, in the civil proceedings (DC CHCH NP2108/01 10 November 2003) said about the appellant at [29]:

Despite his protestations that [the altered documents] had only been undertaken to provide consistency with the bare majority of tradesmen accounts sent to Ronol [the partnership] he completely ignores the fact that the land on which the development was undertaken was in his mother’s name.  I have no doubt whatever that this forgery was undertaken shortly before proceedings were commenced in order to provide foundation for a claim made by him and his wife while his mother was bankrupt.  Because of the audacity of this forgery and its pivotal use in these proceedings I direct the registrar to forward a transcript of the evidence and copies of the material exhibits to the police for investigation.

and further:

I formed the view that he is an unscrupulous person who is not above lying when it suits his case.

[7]        The appellant and his wife were jointly charged with altering the two documents with intent to defraud.  Because the evidence at trial was that the actions of the appellant’s wife were at his direction she was discharged under s 347 of the Crimes Act 1961. 

[8]        The appellant had also been charged with committing perjury, by making a statement on oath that the altered documents were copies of the original documents when he swore his affidavit in support of an application for summary judgment.  At trial he was eventually discharged under s 347 in respect of that count, after the jury had commenced deliberations, because the Crown omitted to adduce any evidence of corroboration.

[9]        The Crown’s case was that the appellant had dishonestly altered the two documents in question, photocopied the altered documents and then destroyed the originals so as to dishonestly bring the civil proceedings he could not otherwise have brought.  The defence position at trial was that it had not been proven that the appellant acted with the necessary dishonest intent.  It was contended that he believed that there was a partnership and he simply altered the documents to reflect that correct position.  If his belief as to the existence of a partnership was wrong, but he nevertheless acted honestly, he could not have the necessary intent to commit the alleged crimes. 

Criticisms of the Judge’s summing-up

[10]     The appeal against conviction is based upon the grounds that the Judge misdirected the jury in four respects.  These are that the Judge:

(a)       improperly directed the jury as to the requirement of intention;

(b)misdirected the jury as to the relevance of the concept of partnership to the intent of the appellant;

(c)failed to direct the jury to disregard the perjury charge; and

(d)failed to direct the jury on how they should use the notes of evidence when deliberating.

Intention

[11]     Initially in his summing-up the Judge directed the jury in the necessary ingredients for these two counts.  He said this:

The issue with respect to Mr Turner is his intent.  [Defence counsel] said this is the single issue, the issue being what was his intent?  Whether when making this alteration he intended to defraud is the issue in respect to both counts.  Now implicit in intent to defraud is the notion of dishonesty.  The intent required to be proved is the specific intent to defraud.  An offence of intent to defraud by making an alteration in a document is complete as soon as the alteration is made with such intent, although the accused may not have intended that any particular person should use or act upon the document so altered or made or should be induced by it to do or refrain from doing anything.  Attempt to defraud does not necessarily require an attempt to inflict some economic loss.  It is not necessary to prove that the accused gained anything or stood to gain anything.  It is sufficient for the Crown to establish that the accused made a false representation with the fraudulent intent to induce someone to act on it or deceive an interested party.

[12]     It can be seen that this direction omits to refer to a situation where an accused honestly believes that he is justified in departing from strict obligations, albeit for some purpose of his own.  A mistaken belief entitles an accused not to be convicted unless he has been shown to act dishonestly.  That is the test referred to in R v Coombridge [1976] 2 NZLR 381 (CA) and adopted in R v Williams [1985] 1 NZLR 294 (CA) and R v Speakman (1989) 5 CRNZ 250 (CA). 

[13]     Consequently, after the jury had retired counsel requested that the Judge make this element clear to the jury and redirect them.  It took a little time before that was done (about two hours, of which one hour involved the taking of lunch) because there was a further argument in relation to the perjury count which had been left to the jury.  The Judge reviewed his ruling, and given the absence of evidence of corroboration, proceeded to discharge the appellant on that count.  He then went on to direct the jury further in the following terms:

Now, I said implicit in the intent to defraud is the notion of dishonesty.  The intent required to be proved is the specific intent to defraud.  An offence of intent to defraud by making an alteration in a document is complete as soon as the alteration is made with such intent although the accused may not have intended that any particular person should use or act upon the document so altered or made or should be induced by it to do or refrain from doing anything.  Now, “fraudulently” in the sense that “defraud” is [sic] used here means that the accused acted deliberately and with knowledge that he was acting in breach of his legal obligation.  In other words, the accused cannot be convicted unless he has been shown to have acted dishonestly.  What I need to tell you that is additional is based on what the accused has said in this case.  That is, a person has not acted fraudulently if in all the circumstances he honestly believed that he was justified from departing from his own strict legal obligations even for some purpose of his own.  That is, it is open to you on the facts of each individual count to conclude that in all the circumstances his conduct, although legally wrong, might nevertheless be regarded as honest.  It is for you to make what you will of his evidence.  He has suggested honest belief.  If you think this is conduct which, though legally wrong, might nevertheless be regarded as honest then you will acquit him.  In other words you must not convict him unless the Crown has proved beyond reasonable doubt that he has acted dishonestly.

[14]     The Judge then referred to the jury taking into account all the evidence including drawing inferences about “the honesty or otherwise of his belief” and:

…in deciding whether the accused’s state of mind, honesty or otherwise, you are entitled to ask yourselves whether it was reasonably possible that he was acting honestly, however mistakenly.  If this is reasonably possible you must acquit him.  Put another way, the accused cannot be convicted of any count unless he has been shown to have acted dishonestly.  Remember, he does not have to prove anything.  The Crown must prove that he was acting dishonestly at the time in question.  If the Crown does not prove all the ingredients of a count beyond reasonable doubt then your verdict on that count must be one of not guilty.

[15]     Mr Rapley, on behalf of the appellant, submitted that the elements of the charges were not spelled out initially and when the correct definition was given on the redirection it was confusing and suggested that the appellant assumed some burden of establishing absence of intent.  We do not accept that submission. 

[16]     The further careful direction of the Judge encompasses and outlines the correct test as laid down in Coombridge.  Viewed in its entirety there is no possibility that the jury would have been confused or misunderstood the proper test to be applied, and that the burden was on the Crown in establishing the absence of honest belief.  The earlier direction, whilst described by counsel as a “mistake”, could be better described as being “incomplete” and the later expanded direction adequately filled any gaps.

Partnership

[17]     Mr Rapley further contended that the Judge misdirected the jury as to the relevance of the concept of partnership to the intent of the appellant.  He said there was a failure to direct the jury whether a partnership existed as a matter of fact.  The Judge’s direction as to what comprised a partnership in law was accurate, but counsel argued that the jury should have been told that they needed to decide as a fact whether a partnership existed or not because if it did then the appellant was justified in altering the documents.  Alternatively, counsel argued that even if mistaken as to the existence of a partnership, if the appellant honestly believed that there was one, then he had no intention to defraud.

[18]     The issue for the jury was whether the appellant had an honest belief that he was entitled to alter the documents.  The appellant could not be convicted if he believed a partnership existed, whether this was in fact the case or not, as he would not have the necessary dishonest intent.  What the Judge said to the jury in this regard cannot be faulted.  He said:

You are entitled to look at all the facts and circumstances to determine whether that type of partnership existed so in this respect you might consider Mr Turner’s evidence about all of the documents and receipts etc.  You have heard criticism by [the Crown] about their being nothing in writing.  I have explained to you that there technically does not have to be.  You might look at that criticism against Mr Turner’s own evidence about when he did alter the documents that he was wanting to ensure that the documents were in order and reflected the partnership.  You might want to weigh all of that up in deciding whether to accept his characterisation of whether a partnership existed or not.  The Crown suggests that you should be sceptical of there being a partnership because, if there is one, you might expect the other partners to have stepped in and prevented a bankruptcy if it related to a matter that the partnership had been involved in.  Against that, you have heard Mr Turner’s explanation as to why they did not.   ...

So that is partnership in the context of how it is raised here.  Do not get too bogged down in that because you have still got to come back to the essential elements of the offence and particularly the issue of intention.  It is in relation to that element of intention that I have instructed you on what a partnership might and might not involve.

[19]     When the entire summing-up is considered, we do not accept that there was any material misdirection in relation to the issue of partnership and its relevance to the honest belief or intent of the appellant.

The perjury charge

[20]     The third ground of appeal was that the Judge did not direct the jury to disregard the s 347 discharge of the perjury count when considering the remaining two fraud counts.  The perjury discharge occurred after the summing-up and the jury had commenced deliberations.  They were advised of the discharge when the Judge gave them the further direction in relation to intent. 

[21]     What the Judge said was that there had been some “developments” and that the third count was removed because there was insufficient corroboration as required by the law.  Whilst the standard of perfection may have been for the Judge to tell the jury that such a discharge had no relevance at all to their consideration of the first two counts, not doing so in these circumstances was not material. 

[22]     Mr Rapley submitted that the jury should have been told that the removal of count three did not signify any view as to the strengths or otherwise of the remaining counts.  But the Judge had made it clear in his summing-up that all three counts had to be considered separately, with separate decisions reached about each and, conventionally, the jury could reach different verdicts on different counts.  We do not accept counsel’s submissions that there existed a “very real risk” that the jury would “naturally assume that there [was] evidence justifying a conviction on the remaining counts and that the Court was of that view”.  Obviously, there was evidence upon which the jury could find the appellant guilty.  Simply because an accused is discharged on one count, or for that matter his wife on both counts, it does not follow that a jury would be inclined to view the other counts as having more or less strength, simply because of the discharge.  This ground fails.

Direction as to notes of evidence

[23]     In this case the jury had been given the notes of evidence.  Counsel argued that the Judge erred in failing to direct the jury as to how they should use those notes when deliberating. 

[24]     A jury may or may not have regard to the notes of evidence when deliberating.  It is usual that they be told, or reminded, to check cross-examination and re-examination when seeing if a witness said anything about an issue on which the jury are interested.  The jury are told that looking at all portions of the transcript is necessary because what may be said in evidence in chief can be qualified or contradicted by what was said later, they are also told to be conscious that other witnesses may have said something about the same issue.  Desirable as this may be, it is not, however, a legal requirement.  It is a matter of practice.  If there is a real risk a miscarriage of justice has occurred through an omission to remind or advise the jury along those lines then a verdict will be set aside. 

[25]     It would have been better for the Judge to have adopted the usual approach in directing the jury, but no miscarriage of justice could, in the circumstances of this case, possibly have arisen through him not doing so.  The central issue was narrow, namely whether the Crown had proved the necessary dishonest intent on the part of the appellant. 

Conclusion

[26]     Although there are some imperfections in parts of the summing-up, when viewed as a whole it could have left the jury in no doubt as to the legal requirements necessary in order to convict the appellant and we have no disquiet about the guilty verdicts.  No miscarriage of justice has arisen.

[27]     The appeal against conviction is dismissed.

Appeal against sentence

[28]     The appellant was sentenced to ten months’ imprisonment with leave to apply for home detention.  The appellant was sentenced on 23 November 2005, spent approximately two months in custody, and has been on home detention since February 2006.  The expiry date of his sentence is 23 September 2006.  The appeal against sentence was based upon an argument that it was manifestly excessive.

[29]     The probation officer had recommended a sentence of community work.  The appellant was aged 53 without any previous convictions.  He was not, however, entitled to any discount for having pleaded guilty and an aggravating feature of the two crimes was that third parties and the taxpayer were put to a cost of close to $200,000 arising out of the civil proceedings which were fraudulently brought based upon the altered documents.  The description of the appellant by another Judge as an “unscrupulous person who is not above lying” did not help the accused.  The sentencing Judge noted that the appellant did not express remorse or any willingness to address what he had done, maintaining that his actions did not constitute an offence.  The Judge said at [26]:

I have struggled to find a basis for a community based sentence.  All of this means for me Mr Turner that I cannot see the deterrent, or indeed any denunciative effect, being met at all by a community based sentence and you do not have the means to pay a fine.  I am of the view that a fine in any event would be inappropriate.  I believe a starting point is in the order of 18 months to two years imprisonment.  I will be giving you credit for your age and the amends that you have made by the sum of $5,000.

[30]     Although R v Koura CA16/05 24 May 2005 involved charges of perjury by giving false evidence to the Tenancy Tribunal it provides a useful example of the approach that may be taken in cases which involve fraud in the administration of justice similar to the present case.  In that case the appellant presented forged receipts to support his argument in his dispute with his landlord.  This Court stated at [19]-[20]:

[19]     There is no established tariff for offences of the type involved here which is plainly analogous to perjury.  Such offending strikes at the administration of justice.  Perjury is prevalent but prosecutions are rare.  In this context, deterrence is very important.  The fact that the appellant’s offending occurred in the context of informally conducted proceedings in the Tenancy Tribunal does not detract from the need for deterrence….

[20]     ….Given the importance of deterrence generally, the premeditated nature of the offending and the forgery of the receipt, we think that the sentence imposed [12 months imprisonment] was not manifestly excessive.

[31]     In the present case the Judge carefully weighed up the aggravating and mitigating factors.  The sentence of ten months’ imprisonment was well within the available range, given the need for specific deterrence.

[32]     The appeal against sentence is dismissed.

Result

[33]     The appeals against both conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington