(Given by Dobson J)
[1] On 1 June 2012, at the conclusion of a five week jury trial in the District Court at Auckland, the appellant Mr Hall was found guilty on 11 counts in an indictment for fraudulent offending. On 7 September 2012, the trial Judge, Judge Gibson, convicted and sentenced Mr Hall to three years and six months imprisonment.[1] This appeal is brought both against those convictions and the sentence imposed.
[2] Subsequently on 20 November 2012, Mr Hall was sentenced in the Auckland District Court by Judge Andrée Wiltens to two years imprisonment on single charges each of cultivation, selling and being in possession of cannabis for supply.[2] Mr Hall had earlier entered guilty pleas to those charges. He was ordered to serve that second sentence cumulatively upon the sentence for his fraud convictions and has also appealed against that sentence.
The conviction appeal
[3] Mr Hall and the solicitor who was acting for him in the relevant transaction, Mr Watson, who was jointly charged with Mr Hall, completed arrangements for Mr Hall to borrow significant sums from BNZ to fund the purchase of a fishing vessel in Queensland. In January and February 2006, BNZ advanced $1.6 million and $397,800 to Mr Hall. These sums were advanced in reliance on written representations that, as to the first sum, it was a portion of the purchase price of the vessel that was represented to the bank to be AUD 2,900,000 and, as to the second sum, that it represented the GST payable on the import of the vessel into New Zealand.
[4] In fact, the vessel was being purchased for AUD 1,080,000. Mr Halls company as purchaser of the vessel did not account to Inland Revenue for GST on its import into New Zealand. The fraud had been facilitated by altering the purchase price stipulated in the agreement for sale and purchase of the vessel, plus the amounts involved in various aspects of the settlement of the transaction as between the solicitor in New Zealand and agents for the vendor in Queensland. The agreement and related correspondence were submitted to BNZ in support of Mr Halls loan application. In addition, false representations were made as to the extent of the personal resources Mr Hall had and was committing to the purchase, as well as misrepresentations as to the level of income earned by him. Mr Hall was charged with four counts of altering a document, four of using an altered document, two of obtaining by deception and one of dishonest use of a document. He was found guilty on all counts and Mr Watson was acquitted on all of them.
[5] Mr Hall defended himself at his trial, but the court appointed Mr Lester Cordwell as an amicus to assist with the conduct of the trial.
[6] Mr Hall also lodged a notice of appeal from his convictions on his own behalf. The grounds of appeal were reduced after Mr Blaikie was retained as counsel for Mr Hall. As argued, the appeal against conviction focused on four grounds that are essentially resolved on the facts.
Decision
(a) Failure to pursue application for propensity evidence in relation to Mr Watson
[7] Mr Blaikie submitted that Mr Watson had been emphatic in his own evidence at trial that he was an honest person of integrity, in support of his denials of involvement in altering the documents that were the subject of the charges. In reality, Mr Watson had been struck off the roll of barristers and solicitors in 2007 for what Mr Blaikie summarised as œdishonesty?, and which Mr Hall had labelled as fraud. Shortly before the trial, Mr Hall had been given disclosure of the records of the New Zealand Law Society disciplinary processes and the outcome. At two stages, he had taken initial steps to pursue an application for leave to adduce propensity evidence in respect of Mr Watson arising out of those records.
[8] Mr Hall complained that he had been strongly dissuaded from pursuing the application by Mr Cordwell. In an affidavit filed in support of his appeal, Mr Hall deposed that Mr Cordwell had advised against pursuit of the application on grounds including:
¢ he would inevitably provoke a complementary application on behalf of Mr Watson to adduce propensity evidence of Mr Halls relevant prior convictions for dishonesty including false pretences;
¢ it would alienate Mr Hall from the Judge;
¢ Mr Hall was wrongly motivated by a vindictive wish to see Mr Watson convicted; and
¢ Mr Hall would be risking a longer eventual sentence.
[9] Mr Cordwell filed an affidavit in response. He denied applying any pressure to Mr Hall on this issue, and deposed that he left the issue entirely to Mr Hall. He had prepared a draft of submissions on the legal aspects relevant to the application, to be used if Mr Hall decided to argue the application. Mr Cordwell stated that Mr Hall twice changed his mind about pursuing the application, but arrived at his ultimate decision not to pursue the application when he had considered a copy of his own criminal record, which Mr Cordwell gave him to consider. Mr Cordwell confirmed that counsel for Mr Watson had foreshadowed a propensity application in relation to Mr Halls record as a response to the propensity application should Mr Hall pursue it. In Mr Cordwells opinion, if one propensity application was granted, both would be.
[10] We are satisfied that Mr Hall was not subjected to any inappropriate pressure from the amicus, and that the decision not to pursue the application to adduce propensity evidence as to Mr Watsons professional misconduct was appropriately made by Mr Hall of his own volition. We are also satisfied that fairness as between co-accused would in all probability require propensity evidence about the backgrounds of both of them, or neither of them. Mr Blaikies characterisation of the circumstances of the disciplinary matters leading to Mr Watson being struck off as œdishonesty? is only correct in a general sense. The disciplinary charges did not extend to criminal fraud. In contrast, the jury would have learned from propensity evidence in relation to Mr Hall that he was a convicted fraudster. In addition, relatively damning details from the summaries of facts in relation to some prior convictions would most probably have been made available to the jury.
[11] The first ground of the conviction appeal cannot be made out.
(b) Lack of capacity to alter the documents
[12] Subsequent to the trial, an IT consultant, Mr Diallo, had been retained on behalf of Mr Hall. Mr Diallo has opined that there was limited technology available in 2006 enabling someone to make alterations to a document transmitted electronically in PDF form. Mr Hall has deposed that he had neither the competence nor the technology to make such changes. Mr Diallos evidence is tendered to support an inference that it is more likely that Mr Watson would be able to do that. Mr Blaikie submitted that such further evidence could have affected the jurys decision as to which of the accused was responsible for altering the documents.
[13] If accepted, Mr Diallos opinion as to the state of the technology does not eliminate the prospect that Mr Hall could have effected the alterations to the document at the time that occurred. Indeed, going into the electronic version of the documents was not the only means by which they could have been altered. A nonexpert careful consideration of the crucial alteration to the price stipulated in the agreement for sale and purchase would most likely lead to the view that changes were forged on a hard copy by more old-fashioned means. In any event, the extent of Mr Halls competence, and the technology available to him in 2006, was a matter under his control and able to be put to the jury on whatever basis he could in his own evidence at trial.
[14] We are satisfied that there was no credible risk to a fair trial caused by the omission of additional evidence on the state of relevant technology at the time.
(c) Failure to call Mr Gilbert
[15] Mr Hall has deposed that Mr Cordwell advised him he was not able to call an accountant named Mr Gilbert. Mr Blaikie advised that Mr Gilbert was introduced to Mr Hall by Mr Watson as someone who could set up tax advantageous structures. Mr Hall believed that Mr Gilbert had been struck off as an accountant for fraud and that he carried out work assignments together with Mr Watson. The apparent inference that was said to arise against Mr Watson was that it was more likely that he was a fraudster because he worked with a fraudulent accountant.
[16] Mr Cordwell denied influencing Mr Hall in his decision not to call Mr Gilbert. Mr Cordwell deposed having gone no further than warning Mr Hall that he could not cross-examine or impeach his own witness. Mr Cordwell annexed a file note made by Mr Hall at the relevant point in the trial in which Mr Hall confirmed it was his own decision not to call Mr Gilbert and another witness.
[17] There is nothing in this ground of appeal.
(d) Prejudicial reference in closing address for the co-accused
[18] The final ground argued on the conviction appeal was prejudice allegedly arising from a component of Mr Gibsons closing address as counsel for the coaccused. Mr Hall complained that the jury was shown a PowerPoint presentation as an aspect of Mr Gibsons closing address, which included a photograph of the fishing boat that was the subject of the transactions giving rise to the charges. Mr Hall described the photograph as being shown with a newspaper headline making reference to unrelated quota fraud charges. Mr Hall was concerned that the irrelevant reference created unfair prejudice, particularly as the lack of relevance was not made clear to the jury.
[19] Mr Gibson completed an affidavit that annexed a copy of the photograph used in his PowerPoint presentation. It does not include any newspaper headline and he denied that there was any. Mr Simmonds submitted that Mr Gibsons recollection was more reliable than Mr Halls. He pointed out that any such irrelevant suggestion that Mr Halls other activities had resulted in claims of quota fraud at that juncture in the trial would have been bound to draw a response from Mr Hall himself, or Mr Cordwell who remained there as amicus, or the trial Judge. There is nothing in any aspect of the record of the proceeding to suggest that any disquiet was acknowledged. We are satisfied that there is nothing in the point.
Post-conviction acceptance of verdicts
[20] If a basis for any of these grounds for challenging the convictions had been made out, we would have had to determine the effect of a fulsome acknowledgement of responsibility for all the offending that was provided by Mr Hall in a handwritten letter to the Judge on sentencing. Although Mr Blaikie endeavoured to minimise the impact of the admission, we construe it as an unequivocal admission of guilt and it would ultimately have been decisive in dismissing the appeal on the ground that no miscarriage of justice had occurred.
[21] The appeal against conviction is dismissed.
Sentence appeal on fraud convictions
[22] The Judge adopted a starting point for the fraud convictions of four and a half years and recognised personal mitigating circumstances to reduce that to three and a half years imprisonment. Realistically, Mr Blaikie acknowledged that the sentence imposed was within the appropriate range. That acknowledgement was inevitable. The sentence can be viewed as light given the relative sophistication of the offending, the amounts involved and Mr Halls previous criminal record.
[23] The one criticism Mr Blaikie advanced of the Judges reasoning on sentence was that the Judge had felt obliged to attribute sole responsibility for all aspects of the offending to Mr Hall because of the jurys acquittal of Mr Watson. The Judge had conducted the trial. He would have had a clear perspective of whether aspects of Mr Watsons conduct warranted mitigation of Mr Halls sentence. Mr Hall was the primary benefactor of the fraud and he was found guilty after his attempt to pass blame to Mr Watson failed.
[24] In any event, we are satisfied that the starting point adopted was low enough to accommodate a view that Mr Watson had materially contributed to elements of the offending, notwithstanding his acquittal on all charges. We do not accept that this point constitutes an error in the approach adopted by the sentencing Judge and there is no credible premise for claiming that the end sentence was manifestly excessive.
[25] The appeal against sentence on the fraud convictions is dismissed.
Sentence appeal on cannabis conviction
[26] The first point raised by Mr Blaikie on the appeal against sentence on the cannabis convictions was that the sequence of sentencing was disadvantageous to Mr Hall. He submitted that the imposition of cumulative sentences on the cannabis conviction so soon after the sentence for the fraud convictions would have been seen in a different light if all were considered at the same time.
[27] That point cannot be advanced given that there was a lapse between the sentencing for the fraud convictions, only after which did Mr Hall plead guilty to the cannabis charges. When the first sentencing occurred, there was no way that the Court should have deferred that step because of the contingent prospect of sentencing on other charges that were then unresolved. In other respects, the choice of cumulative sentences was entirely orthodox and appropriate.
[28] Mr Blaikie submitted that, on the cannabis sentencing, Judge Andrée Wiltens could have adopted a lower presumption as to the length of the period during which Mr Hall had harvested the cannabis and that, had he treated the period as shorter, it would have produced a marginal reduction by reference to the bands in R v Terewi.[3] Mr Hall had not contested the police summary by pursuing a disputed facts hearing. There is nothing in the point on the facts as conveyed to the sentencing Judge, and the starting point was squarely within the correct range.
[29] Although Mr Blaikie accepted that the difference he contended for would not make a significant proportionate reduction, he argued that in Mr Halls case any reduction in the length of sentence will be meaningful because of the difficulties he is encountering in serving his sentence. That concern arises out of material assistance given by Mr Hall in the provision of information about entirely unrelated, serious drug offending. The Crown acknowledged that assistance at his sentencing on the fraud convictions. He was given a substantial discount at that time, which reflected the total credit available for such co-operation.
[30] The prison authorities have recognised the risk of harm to Mr Hall in prison resulting from the animosity towards him as a result of that co-operation. He is serving his sentence in what appears to be virtually total isolation. That cannot constitute a basis for reducing what is otherwise the appropriate length of sentence.
[31] Mr Blaikie submitted that the substantial extent of Mr Halls assistance should also have been taken into account on the second sentencing. However, having previously been given an appropriate credit for that assistance, there was no reasoned basis on which the Judge could give credit for it on the second occasion.
[32] Accordingly, there is no merit in the appeal against the sentence imposed for the cannabis offending. That appeal is also dismissed.
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[1] R v Hall DC Auckland CRI-2009-004-3103, 7 September 2012.
[2] Police v Hall DC Auckland CRI-2010-004-11857, 20 November 2012.
[3] R v Terewi [1999] 3 NZLR 62 (CA).