Legal Research
Cases
Wenzel v R

Wenzel v R

Case [2010] NZCA 501 3 November 2010

Unconscionable Conduct

No judgment structure available for this case.

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND
CA105/2010
[2010] NZCA 501
BETWEENSHANE CHARLES WENZEL

Appellant

ANDTHE QUEEN

Respondent

Hearing:2 November 2010

Court:Randerson, Potter and Heath JJ
Counsel:M B Meyrick and A E Lankovsky for Appellant

D J Boldt for Respondent

Judgment:3 November 2010
Reasons:17 November 2010
Recalled and Reissued: 19 November 2010

JUDGMENT OF THE COURT

A         The appeal against conviction is allowed.
B         The convictions on all 36 counts in the indictment are quashed.
C         A new trial is ordered on all counts.
D         If the appellant seeks bail, he must apply to the District Court.
REASONS OF THE COURT
(Given by Randerson J)
Table of Contents

Para No

Introduction

[1]

Background

[3]

The indictment

[15]

The grounds of appeal

[17]

Counsel’s submissions on the first ground of appeal – failure to make findings of fact on the essential elements of the crimes alleged

[34]

Discussion

[39]

Mr Wenzel’s liability as a party to the jointly laid counts

[68]

The remaining issues

[74]

Mr Wenzel’s personal submission

[77]

Conclusion

[79]

Introduction
[1]        After a District Court trial before Judge Epati spanning a period of some 16 weeks, the appellant Mr Wenzel was convicted of 35 counts of fraud under the Crimes Act 1961 and one count of failing to produce documents contrary to s 45 of the Serious Fraud Office Act 1990. The Judge sat without a jury and announced his verdict with brief reasons on 23 December 2009. He gave detailed reasons on 10 February 2010 and sentenced Mr Wenzel the same day to five years imprisonment. [1]
[1]      R v Wenzel DC Manukau CRI-2006-092-014382, 10 February 2010.
[2]        On 3 November 2010, we allowed Mr Wenzel’s appeal against conviction on all 36 counts. The convictions were quashed and a retrial ordered with reasons to follow. These are our reasons.
Background
[3]        The charges against Mr Wenzel arose from a series of transactions involving the sale and purchase of properties in South Auckland. The Crown alleged that Mr Wenzel was in de facto control of a series of companies together known as the SCI group. It was alleged he devised and supervised a scheme by which mortgage lenders were defrauded. The Crown alleged the banks were deceived into lending 100 per cent of the purchase price of a property in circumstances where they would not have done so had they been aware of the true position.
[4]        The Crown alleged that the deception involved four key elements although not all were present in every case. These were:
(a)Misleading the lender by producing a sale and purchase agreement which stated that the purchase price was significantly higher than it really was.
(b)Falsely inflating the income of the purchasers.
(c)Falsely asserting that a real estate agent had been involved in the transactions.
(d)Misleading the lender into believing that a substantial deposit had been paid when it had not.

[5] At material times Mr Wenzel was an undischarged bankrupt and was not permitted to have any formal role within any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wenzel v R

Details

AGLC: Wenzel v R [2010] NZCA 501
Case: [2010] NZCA 501
Decision Date: 3 November 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Wenzel appealed against his conviction on 36 counts of fraud and one count of failing to produce documents. The appeal was allowed, and the convictions were quashed. The Court found that the trial Judge had failed to make findings on the essential elements of the crimes alleged, resulting in a miscarriage of justice. The Court emphasized the importance of the Judge making separate findings on the factual and legal elements relevant to each count, including identifying the documents relied upon, finding that the documents were capable of being used to obtain a pecuniary advantage, and determining whether the accused acted with intent to defraud or dishonestly without claim of right. The Court also addressed Wenzel's liability as a party to the jointly laid counts and concluded that the Crown could proceed on the alternative bases of liability. A retrial was ordered on all counts.

Orders