THE QUEEN v BROWNIE MCMANUS [2000] NZCA 18 (21 February 2000)

IN THE court of appeal of new zealand

ca435/99

THE QUEEN

V

BROWNIE MCMANUS

Coram:	Gault J Williams J Goddard J
Judgment: (Ex parte)	21 February 2000

judgment of the court DELIVERED BY GAULT J

[1] Following a jury trial in the Auckland District Court the appellant and a co-offender Stenerson were convicted on 13 charges of using a document to obtain a pecuniary advantage with intent to defraud.Each was sentenced to 200 hours community service, the Judge acknowledging the reparation either paid or to be paid.Both appealed against conviction but this morning a notice of abandonment was filed on behalf of the appellant Stenerson.

[2] The present appellant Mr McManus, having given notice of appeal specifying the same grounds of appeal, sought legal aid but this was declined. Nevertheless in the absence of any submissions from him the Court has felt that consideration should be given to those grounds of appeal having regard to the material filed in the Court in support primarily of the Stenerson appeal.

[3] The charges arose from an internal audit investigation conducted by Benchmark Building Supplies Ltd (the complainant).The appellant was the branch manager of the Morningside branch of the business.While conducting the audit it was discovered by the employer that there were irregularities in relation to payments made to a carrier firm designated as B Hunt Carriers which was said to have performed cartage services for the Morningside branch.The evidence was that the company operated an accounting system requiring payment advice listings to be sent to head office by way of authority for the payment of accounts.Cheques then were written including those made out to B Hunt Carriers.The relevant payment advice listings were prepared either by the appellant or his assistant.On 11 of 13 occasions leading to cheques payable to B Hunt Carriers the appellant completed the entry for that payee.On eight of those occasions the entry concerned was the last on the list.No invoices or other documentation could be located to support the payment authorities for B Hunt Carriers.

[4] The police were unable to locate any evidence that the carrying company existed.Enquiries revealed that the address given for B Hunt Carriers was also the address of the co-offender Stenerson, who owned and operated Stenerson Construction a major customer of the Morningside branch of Benchmark.

[5] Thirteen cheques were made out to B Hunt Carriers giving rise to the 13 charges on which the jury found each of the co-offenders guilty.The first 10 cheques were paid into the account of the co-offender Stenerson after being endorsed by him and purportedly signed B Hunt.Another of the cheques was used to open an account in the name of G E & A Stenerson trading as B Hunt Carriers with another bank.

[6] A search of Stenerson's house disclosed a number of cheque butts which suggested and presumably were taken by the jury as indicating a sharing of the proceeds of most of the cheques received from Benchmark between Stenerson and McManus.It transpired that the co-offender Stenerson had a stepson named R B Hunt but he was said to be a different person from the carrier.

[7] The defence advanced at the trial was that B Hunt did exist, and that he did perform cartage services for Benchmark, Morningside.None of the staff of that branch who were called could recall B Hunt or B Hunt Carriers.Stenerson further claimed that he had lent B Hunt a large sum of money which Hunt was repaying having his cheques sent to Stenerson who deposited them and then drew cash cheques for half the amount (adjusted for GST) which was handed back to Hunt.When spoken to by the police both appellants denied any fraudulent conduct and each maintained his explanation in evidence given at the trial. After lengthy deliberations the jury rejected the explanations and convicted both on all charges.

[8] There are three grounds of appeal.The appellant submitted that the summing-up of the Judge to the jury was inappropriate and that it did not adequately put the defence case leading to a miscarriage of justice.We have read the summing-up.We have no concern that the issues were not placed fairly before the jury with appropriate directions that matters of fact and credibility were for them to decide.There is nothing in this ground.

[9] The next ground was that the Judge placed undue pressure on the jury in comments to them after they indicated they were having difficulty reaching agreement.It was submitted that this made the convictions unsafe.We are satisfied that the direction given by the Judge was appropriate.It was substantially in the form approved by this Court in R v Accused [1998] 2 NZLR 46.There is nothing on the face of the direction to suggest any undue pressure was placed on the jury to reach its verdicts.The Judge both prefaced and concluded his comments by emphasising that there was no pressure and that there was plenty of time for a decision.In fact the jurors took another two hours to reach their verdicts.

[10] The third ground put forward in support of the appeal relates to the trial Judge permitting the Crown to call rebuttal evidence at the end of the defence case.The Judge ruled on the point applying the correct principles and we are satisfied that the rebuttal evidence was directed to a point first raised in the course of the appellant's evidence and was not something reasonably to be anticipated by the Crown.The ruling was entirely appropriate.

[11] In the circumstances the appeal against conviction is dismissed.