Vuniduvu v The the Queen
[2022] NZCA 420
•7 September 2022 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA470/2019 [2022] NZCA 420 |
| BETWEEN | LITIA ROKELE VUNIDUVU |
| AND | THE QUEEN |
| Hearing: | 11 July 2022 |
Court: | Miller, Lang and Cull JJ |
Counsel: | D J Dufty for Appellant |
Judgment: | 7 September 2022 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cull J)
Over a three-year period, Ms Vuniduvu and Mr Bainbridge invoiced Ports of Auckland Ltd (POAL) 50 times for work falsely reported to have been completed by Ms Vuniduvu. Ms Vuniduvu was convicted of 50 charges of dishonestly using a document[1] by jury trial and sentenced to three years’ imprisonment.[2] She served all of her sentence. Ms Vuniduvu now appeals her conviction.
Background
[1]Crimes Act 1961, s 228(1)(b); maximum penalty seven years’ imprisonment.
[2]R v Vuniduvu [2019] NZDC 12908.
Ms Vuniduvu was in an intimate relationship with Mr Bainbridge. Mr Bainbridge worked for POAL as a manager of ICT services and had limited delegated authority to engage and pay contractors. Throughout the three-year period in which Ms Vuniduvu and Mr Bainbridge submitted false invoices, POAL paid Ms Vuniduvu over $360,000.
Mr Bainbridge pleaded guilty to the charges at an early stage. Ms Vuniduvu proceeded to trial. Her defence at trial was that she was a contractor for POAL, had completed the work invoiced, and was entitled to the money. In convicting Ms Vuniduvu on all charges, the jury rejected her defence and concluded either that she was responsible as a joint principal offender or acted as a party to Mr Bainbridge’s offending.
Grounds of appeal
Ms Vuniduvu appeals her conviction on two grounds: there has been a miscarriage of justice; and the jury verdict was unreasonable. She submits that there was a miscarriage of justice for three reasons. First, changes to the Crown case from principal-only to principal or party liability unfairly prejudiced her defence to the charges. The question trail and summing-up did not adequately identify what was necessary to prove her liability as a party. Second, there was inadequate pre-trial disclosure. Third, the prosecution led immigration and taxation evidence that was unfairly prejudicial to her.
Ms Vuniduvu also submits that there was insufficient evidence of assistance or encouragement as a party, and accordingly the jury’s verdict was unreasonable.
The appeal was filed one month out of time. The Crown does not oppose an extension of time and we grant leave accordingly.
Miscarriage of justice
Principal and party liability
Ms Vuniduvu submits that the Crown raised her liability as a party to the offending only at the close of the trial. The Crown had opened alleging she was liable for the charges as a principal. She submits that the change of position significantly prejudiced her defence at trial as she was not given a chance to object or call direct evidence to challenge the allegation that she had assisted or encouraged Mr Bainbridge to use the documents.
The original charging documents filed on 10 October 2016 did not charge Ms Vuniduvu as a party. The offence description indicates that Mr Bainbridge and Ms Vuniduvu “jointly offended … with intent to obtain a pecuniary advantage”. However, the subsequent Crown charge notice filed on 22 September 2017[3] relies upon both s 66 of the Crimes Act 1961 and the relevant offence provision for each charge.
[3]Some 18 months before commencement of the trial.
Although the Crown made no specific reference to party liability in its opening address, the Crown accepted it had to prove that Ms Vuniduvu or Mr Bainbridge used these documents, namely the invoices. The relevant passage of the opening address reads:[4]
…each of the charges is the same, it’s an allegation that the defendant with intent to obtain a pecuniary advantage dishonestly and without claim of right used a document… The first thing that the Crown must prove is that the defendant used a document… the documents that the Crown alleged were used are the invoices and there’s no issue here that these invoices were indeed used. And of course plainly an invoice is a document so between them are, well the defendant or Mr Bainbridge used these documents and they were presented to Mr Bainbridge who approved them so that the defendant would be paid.
[4]Emphasis added.
In closing, the Crown confirmed that it was alleging Ms Vuniduvu was either a principal or a party to the offending:[5]
… the Crown is running the case in terms of either the defendant or Mr Bainbridge used the document but they both assisted each other with it, so even if you find that it was Mr Bainbridge who filed the document away, you can find that the defendant assisted and encouraged Mr Bainbridge to do that.
[5]Emphasis added.
Ms Vuniduvu relies on R v Shaw.[6] Mr Shaw was found guilty as a secondary party to wilfully setting fire to a church. The Crown had opened the case on the basis that Mr Shaw was the principal offender but, in closing, contended he could have been a secondary party. This Court quashed his conviction because there was no opportunity for him to defend the alternative charge:
[35] What the Crown did was effectively, very similar to an amendment of the indictment by the addition of an alternative charge. However, because of the course adopted by the Crown, there was no opportunity whatever for the appellant to be heard as to whether he opposed the position of the Crown. …
…
[39] If the Crown intended to rely upon that language for his conviction as a secondary party, the appellant had to be given a reasonable opportunity to defend himself in respect of that. He could well have sought to have cross‑examined other witnesses already called. He might well have wished to give other evidence himself… He might have sought to call other evidence… Because of the course adopted at trial he had none of those opportunities.
[6]R v Shaw CA159/05, 22 November 2005.
Shaw is distinguishable.First, unlike Shaw, party liability was included on the Crown charge notice. Second, the evidence relied on for secondary liability in Shaw, being the appellant’s comments made months prior to the fire, was different to the evidence relied on for principal liability, being the events immediately surrounding the alleged arson. Mr Shaw therefore was denied the opportunity to give evidence refuting, qualifying or explaining the comments which formed the basis for his secondary liability.
In contrast, the evidence in relation to both principal and secondary liability here was the same. Ms Vuniduvu’s defence was that she was entitled to the invoiced money. This applied equally to principal and party liability, as she denied she knew that the invoices were rendered and used dishonestly. Trial counsel did not object to the Crown framing its case to include party liability and, in his closing, addressed this issue squarely in relation to Ms Vuniduvu’s party liability by stating:
[Ms Vuniduvu] did not assist or encourage Mr Bainbridge’s dishonest use of a document. She simply could not have done so. She didn’t know.
In his jury direction, the Judge reinforced the defence case as follows:
[63] In this case, the defendant has explained her version of events to you. She said that Mr Bainbridge not only defrauded [POAL], but he also lied to and misled her. At all times, she believed that she was doing genuine work of value. She submitted invoices for each piece of work, and only claimed the rate that had been pre-approved by [Mr Bainbridge] or someone else at [POAL], not requested by her.
[64] If you accept what she says, then obviously the proper verdict is not guilty, because she will not have done what the Crown says she did. If what she says leaves you unsure then, again, the proper verdict is not guilty, because you have been left with a reasonable doubt.
Although the Crown did not expressly invoke s 66 in its first charge notice, it is plain that, at trial, the charge notice, the question trail, the parties’ closings, and the Judge’s summing-up all addressed her party liability in the alternative. We consider this ground does not amount to a miscarriage of justice as both principal and party liability was before the jury and the defence to both was materially the same. The jury clearly did not accept the defence on the evidence.
“Used” a document
Ms Vuniduvu submits that she had a strong defence to being a principal offender, as there was cogent evidence that Mr Bainbridge had created the invoices without her input and approved them himself. Consequently, she says there was a reasonable chance that she would have been found not guilty as a principal offender, as she did not “use” the invoice herself, and the Judge erred by failing to define “used a document” in his jury direction.
The Crown submits that the defence position has changed on appeal. The jury heard Ms Vuniduvu admit she used the invoices and there was repeated reference to her doing so. Her defence was that she did the work and was entitled to the money, which was paid on the invoices. The Judge directed the jury that they had to be satisfied, beyond reasonable doubt, that Ms Vuniduvu used the invoices or encouraged or assisted Mr Bainbridge to use them.
It is correct that the Judge did not explain to the jury the meaning of “used”. We consider that, given the defence acceptance that the invoices were used and Ms Vuniduvu’s evidence that she considered she was a POAL contractor who did the work and was therefore entitled to the money, no definition was required.
Ms Vuniduvu’s explicit acknowledgment of her use of the invoices is also reflected in her counsel’s submissions on the appeal:[7]
24. In her interview to police, which was played at trial, when asked how Ms Vuniduvu would send her invoices into Ports of Auckland, she said that she did not like administrative tasks so on a number of occasions she asked Mr Bainbridge to send them in. She said Mr Bainbridge created the invoice and she would give him the details to put in the invoice.
25. When cross-examined about this, Ms Vuniduvu said that they both created the invoices, but she could not identify which ones she created and submitted and which ones Mr Bainbridge created.
[7]Footnotes omitted.
In his summing-up, the Judge reminded the jury that Ms Vuniduvu accepted:
… that 50 invoices were submitted, some by her, some by Mr Bainbridge, she said if she was away, and that she was paid on 49 of them, into her personal bank accounts. The first account was an account in someone else’s name, but she had exclusive access to it.
The Judge noted several times in his summing-up that the “use” element of the charges was not contested. Rather, the key issue before the jury was dishonesty. The Judge began his direction to the jury that it was “accepted that frauds were perpetrated” and that “[t]hose documents, those invoices were used and money was obtained”. He repeated it when he explained to the jury the ingredients of the offences in Questions 1 and 4 of the question trail:[8]
Question 1, ‘Has the Crown satisfied you beyond reasonable doubt that Ms Vuniduvu used the invoice?’ As I have already reminded you, there is no dispute that the invoice was used. This question is simply there to consider whether she has done so as a principal, or as a party, helping Mr Bainbridge. Has the Crown satisfied you beyond reasonable doubt that Ms Vuniduvu used the invoice? If yes, go to question 2. If no, then you flip over and go to the alternate question trail, dealing with her as a possible party; we will come to that in a moment.
And again at Question 4:
[34] Question 4. ‘Has the Crown satisfied you beyond reasonable doubt that Ms Vuniduvu encouraged or assisted Mr Bainbridge to use the invoice?’ This is the alternative proposition. I remind you again, there is no dispute that the invoice was used.
[8]Emphasis added.
For completeness however, we record that the word “use” has been given a broad interpretation, to include giving a document to an agent to make use of it,[9] or a single action such as the handing over of a document to its intended recipient.[10]
[9]R v Fowlds CA222/00, 13 December 2000.
[10]Palmer v R [2010] NZCA 53, (2010) 24 NZTC 24116.
We consider that in light of Ms Vuniduvu’s admission that she provided details for the invoices to Mr Bainbridge or, at times, created and submitted the invoices herself, the “use” ingredient of the offending was satisfied. The Judge’s omission to define “use” in the circumstances was appropriate, as the parties accepted that the invoices were used for a dishonest purpose.
“Assistance and encouragement”
Ms Vuniduvu submits that the question trail and the Judge’s summing-up failed to adequately identify what was necessary for party liability. In particular, she contends the Judge did not direct the jury on what amounted to assistance or encouragement. Without sufficient direction on the correct legal definition, she submits, there is a real risk that the jury relied on a false assumption that because Ms Vuniduvu was in a relationship with Mr Bainbridge and benefitted from the income provided, she was assisting or encouraging him.
In addition to Question 4 in the Judge’s question trail, as set out above at [21], question 5 asked whether “Ms Vuniduvu intended to encourage or assist Mr Bainbridge to use the invoice, knowing that he was acting dishonestly and without claim of right?” and question 6 asked whether Ms Vuniduvu intended to obtain a pecuniary advantage “when she encouraged or assisted Mr Bainbridge to use the invoice”.
It is relevant in our view that the Judge had directed the jury that the Crown was proceeding on two bases. First, that Ms Vuniduvu was a “primary, principal offender” and fully engaged in the offending. In the alternative, he directed the jury that if they were not sure of that, then they must also consider whether she helped Mr Bainbridge, knowing that he was dishonest and had no claim of right, and intended that she reap a financial reward being the money that went into her bank accounts.
The Judge directed the jury on the ingredients of each alternative charge by reference to the question trail. The first three questions of the question trail addressed the ingredients of dishonestly using a document as a principal. Questions 4 to 6 addressed the ingredients of the charge as a party.
In proceeding through the alternative questions, the Judge was careful to direct that if Ms Vuniduvu was assisting someone else to commit an offence, she needed to know that the other person was acting dishonestly and without claim of right. Further, he directed that her motivation for helping that other person must still be her own personal enrichment for her to have committed an offence. He then explained Question 6, which is whether the Crown has satisfied the jury beyond reasonable doubt that Ms Vuniduvu intended to obtain a pecuniary advantage when she encouraged or assisted Mr Bainbridge to use the invoice. The Judge explained that Question 6 is worded in that way because she must intend to obtain a pecuniary advantage, not that Mr Bainbridge obtained a pecuniary advantage.
In our view, there was no need therefore to direct the jury that there must be proof of actual assistance or encouragement by words, conduct or both. Ms Vuniduvu had admitted the use of the invoices. Either Ms Vuniduvu provided details for the invoice, by assisting in filling out the form, or created and submitted the invoices herself. The important issue, upon which the defence relied and which the Judge addressed, was whether Ms Vuniduvu had an entitlement to the money. Thus, the Judge focused on the key issue, which was whether Ms Vuniduvu was dishonest or knew that the invoices were used dishonestly. In his summing-up, the Judge directed:
… there is left one very important factual issue that you must resolve, that is, whether you are sure that the defendant did not do the work justifying the total claims of over $380,000.
We consider the Judge was entitled to direct the jury on the basis that it was accepted by the parties that the invoices were used and that fraud was perpetrated. He was also correct in focusing on Ms Vuniduvu’s dishonesty in his summing-up, because she said the payments were justified.
We note that the Judge indicated at sentencing that it was not clear whether the jury convicted Ms Vuniduvu as a principal or a party. Given the “strength of the evidence, the similarity of each and every charge, [and] the actual role played by [Ms Vuniduvu],” he made a finding of fact that she was acting as joint principal, “fully aware of and a full participant in the obtaining of the monies over those 50 false invoices”.[11]
[11]R v Vuniduvu, above n 2, at [5].
We also reject the additional ground of appeal that there was insufficient evidence of assistance or encouragement, which gave rise to an unreasonable jury verdict. For the reasons outlined above and on Ms Vuniduvu’s evidence, there was a sufficient evidential foundation upon which the jury could reach its guilty verdicts, and the verdicts were not unreasonable.
Disclosure
Ms Vuniduvu submits her defence was prejudiced because the prosecution omitted to disclose two hard drives uplifted from Mr Bainbridge’s computer. She says they contained relevant information that included evidence of projects that she had been involved in at POAL, and other relevant documents. Of particular relevance are documents that Ms Vuniduvu says name herself as the project manager, a research brief, and further information showing that Mr Bainbridge had created and submitted the invoices himself.
The Crown submit that this failure to disclose was a “regrettable” oversight, but an honest mistake due to a belief held by the police that the data related to Mr Bainbridge rather than Ms Vuniduvu. Upon reviewing the documents, the Crown says, there is nothing that might have materially assisted Ms Vuniduvu’s defence.
We accept the Crown’s submission. When pressed during the hearing, Mr Dufty, counsel for Ms Vuniduvu, could not point to any document that would have assisted at trial. Accordingly, we do not accept that the failure to disclose the hard drives resulted in a miscarriage of justice.
Inadmissible evidence
At trial, the Crown produced a letter sent by Ms Vuniduvu’s immigration lawyer to Immigration New Zealand in support of Ms Vuniduvu’s application for a work visa on the basis of her partnership with Mr Bainbridge. The Crown submitted in its closing that the letter failed to mention Ms Vuniduvu’s work and income at POAL, which was a significant omission, supporting an inference that the income was illegitimate.
Ms Vuniduvu submits that the letter ought to have been ruled inadmissible, given its minimal probative value. She submits that it was framed in an unfairly prejudicial manner incorrectly implying that there was some requirement for Ms Vuniduvu to provide information about her work history and income, when the letter was focused on the nature of her genuine, stable relationship with a New Zealand citizen and she had disclosed bank statements to Immigration New Zealand from December 2015 to July 2016 which showed regular payments from POAL.
The letter is focused on the relationship between Ms Vuniduvu and Mr Bainbridge. However, it also notes:
(a)Ms Vuniduvu’s previous work history as a research assistant, telephone accounts manager, flight attendant, public relations officer and business development executive. The letter names three of her previous employers.
(b)That “common interests” shared by Ms Vuniduvu and Mr Bainbridge led to “mutually based actions”, including a business the couple opened in both New Zealand and Fiji. Mr Bainbridge is the director and shareholder of the company.
We accept, as the Judge did,[12] that there is no illegitimate prejudice attached to the letter. Ms Vuniduvu was able to give evidence about why there was no reference in the letter to her income from POAL and she did. Ms Vuniduvu addressed these issues in her evidence at trial, as they arose in cross-examination:
[12]The admissibility of the letter was the subject of a ruling during the trial: R v Vuniduvu [2019] NZDC 7035 (Ruling 3 of Judge D C Down).
Q. Let’s turn to your immigration letter please. You’ve told us that you didn’t have to tell Immigration about your income, is that right?
A. I didn’t even have to submit what I’ve done, if that is not the category, the category is partnership work visa…
…
Q You accept that you must have enough money to live on while you’re in New Zealand or have an acceptable sponsor?
A. Yes, yes.
Q. So why not tell the Department of Immigration that, “I have this $210,000 a year job, that’s certainly enough money to live on while I’m in New Zealand.”
A. Mr Prosecutor, it’s not relevant to submit that information, no not under that particular partnership visa, I would have, I would have revealed it if they needed it, no it wasn’t.
Q. You gave them your bank accounts, didn’t you, your joint account with Mr Bainbridge, didn’t you?
A. Yes.
Q. And that was to show you had funds, you had some money, wasn’t it?
A. No, the reason why, it’s not that I have money... it’s just a sign of what any normal couple would do, separate, joint savings account, that’s it, there’s no underlying motive, there’s nothing, it is what it is, straightforward.
It was open to the jury, as fact-finders, to form their own conclusions in relation to this evidence. We do not accept that the admission of the letter resulted in a miscarriage of justice.
Ms Vuniduvu also submits that an Inland Revenue schedule recording her income from various employers over a three-year period should have also been excluded as evidence. Ms Vuniduvu had admitted that she failed to declare her income from POAL to Inland Revenue. She submits that this schedule, produced without explanation, may appear to demonstrate that Ms Vuniduvu has failed to declare other income from other employers. Further, the schedule does not exclude the possibility that Ms Vuniduvu filed a tax return as a contractor for her work for POAL.
The Crown submit the relevance of the information flows from the fact the schedule was received by Detective Sergeant Bergin in the course of the investigation. The Detective requested information including Ms Vuniduvu’s “tax returns, known employees, known income for the past seven years”. He received the schedule and nothing else. The schedule showed that no income was declared for the financial year ending in March 2016.
We accept the Crown’s submission that the schedule and the Detective’s evidence are highly relevant and supportive of the Crown case. It gave rise to the inference Ms Vuniduvu did not file a tax return in respect of her income from POAL. If she had, this would have been provided alongside the schedule. Ms Vuniduvu ultimately conceded in cross-examination that she had not filed a tax return. The evidence was both relevant and admissible.
Conclusion
We are satisfied that there has been no prejudice to Ms Vuniduvu’s defence and there has been no miscarriage of justice. The Crown had charged Ms Vuniduvu both as a principal and a party and the defence was conducted in respect of both. The defence specifically submitted to the jury that Ms Vuniduvu did not assist or encourage Mr Bainbridge because she did not know that the invoices were dishonestly paid. This was the key issue which the Judge addressed and upon which the jury ultimately rejected the defence and convicted Ms Vuniduvu.
As to the remaining grounds of appeal, the failure to disclose Mr Bainbridge’s hard drives did not materially affect Ms Vuniduvu’s defence. The Immigration New Zealand letter and Inland Revenue schedule were relevant pieces of evidence and the admission of which not unduly prejudicial.
Result
The application for an extension of time is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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