Wenzel v The Queen - [2013] NZCA 403

IN THE COURT OF APPEAL OF NEW ZEALAND

CA20/2013
[2013] NZCA 403

BETWEEN	SHANE CHARLES WENZEL Appellant
AND	THE QUEEN Respondent

Hearing:	15 August 2013
Court:	Harrison, Venning and Courtney JJ
Counsel:	M B Meyrick for Appellant B D Tantrum and F M T Culliney
Judgment:	29 August 2013 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction on all eight counts is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

Shane Wenzel was found guilty following a trial before Judge Winter sitting alone in the District Court on two counts of using a document with intent to defraud (counts 1 and 2) and six counts of using a document dishonestly (counts 3, 4, 5, 6, 15 and 18).[1] He was acquitted on 12 other dishonesty counts. Mr Wenzel was convicted and sentenced to a term of three years imprisonment.[2]
[1]R v Wenzel DC Manukau CRI-2006-092-14379, 15 October 2012. This was a retrial after this Court allowed Mr Wenzel’s appeal against conviction at an earlier trial: Wenzel v R [2010] NZCA 501.
[2]R v Wenzel DC Manukau CRI-2006-092-14379, 14 December 2012.
The primary issues at trial were whether Mr Wenzel participated in what was undeniably a fraudulent mortgage scheme and, if so, to what extent. Nevertheless, the trial before Judge Winter lasted for the best part of six weeks. Extensive evidence, both direct and documentary, was called. However, Mr Meyrick has refined the grounds of Mr Wenzel’s appeal against conviction with commendable clarity. He relies on the generic grounds that (a) the verdicts on the first two counts particularly were unsupported by the evidence; and (b) the Crown failed to negate the reasonable possibility that on the remaining six counts Mr Wenzel acted with a claim of right.
Mr Meyrick advised that Mr Wenzel’s appeal against sentence was abandoned.

Background

The essential facts are not in dispute.
Mr Wenzel was between 2002 and 2006 an undischarged bankrupt. He was prohibited by law from acting as a company director. He befriended Ms Robyn Case. By all accounts she was a reasonably successful business woman. She had a company called Case Boreham Associates which operated training seminars. That is how she met Mr Wenzel; he was employed by her to run these seminars.
By 2004 Ms Case had formed what is called the SCI group of property companies. In practice SCI and its related companies seem to have bought and sold low value residential properties. The Crown’s case was that Mr Wenzel effectively controlled and ran the SCI group. Mr Wenzel was said to be the promoter of a scheme designed to defraud financial institutions into lending funds to purchase properties.
The essence of the fraudulent scheme which was known as the zero down scheme (counts 4, 5, 6, 15 and 18) was that SCI companies purchased residential properties for on-sale to apparently unrelated individuals (throughout called recruits) who had attended Mr Wenzel’s training seminars; that based on an artificial and inflated purchase price…

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 The Queen

Details

AGLC: Wenzel v The Queen [2013] NZCA 403
Case: [2013] NZCA 403
Decision Date: 29 August 2013 at 10.30 am

CaseChat Overview and Summary

The appellant, Shane Wenzel, appealed against his conviction on eight counts of using a document with intent to defraud or dishonestly, which arose out of his involvement in a fraudulent mortgage scheme. The primary issue before the Court was whether the District Court Judge erred in his findings of fact and, if so, whether those errors were sufficient to undermine the appellant’s convictions. The Court found that the Judge’s findings were supported by the evidence and that the appellant’s convictions were properly returned. The Court also rejected the appellant's submission that the Crown had failed to negate a claim of right on certain counts. The appeal against conviction on all eight counts was dismissed.

Orders