THE QUEEN v WYNYARD WALTER ANANIA [2000] NZCA 374 (7 December 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 93/00

THE QUEEN

V

WYNYARD WALTER ANANIA

Hearing:	4 December 2000
Coram:	Richardson P Robertson J Goddard J
Appearances:	G Gotlieb for Appellant S P France for Crown
Judgment:	7 December 2000

judgment of the court DELIVERED BY ROBERTSON J

[1] In December 1999 Wynyard Walter Anania stood trial in the District Court at Auckland on one charge :

That between 16 December 1993 and 17 February 1994, at Auckland, having received a valuable security, namely a New Zealand Lottery Grants Board cheque for $56,250.00 with a direction that the proceeds of the valuable security should be applied to the purpose of upgrading the meeting house and the construction of a dining room at the Kokiri Ki Maungarei Marae, in violation of good faith and contrary to the direction fraudulently applied the proceeds to another purpose and thereby committed theft.

[2] It was a retrial the first jury having been unable to reach a unanimous verdict.

[3] After the jury had been deliberating for some time they sent a question :

If we feel the misappropriation was partial how do we give our verdict regarding percentages?

[4] There is no formal record of the answer given to the jury as it was not archived and is now irretrievable from the digital recording system.

[5] In answer to an inquiry from this Court, the trial Judge advises that her Bench book notes, "the verdict should be guilty or not guilty - if you find the accused guilty I would like to know whether that is to the whole amount or part only of it.You don't need to go into percentages of amounts."

[6] A few minutes later the jury returned its unanimous verdict which was "guilty - as to part".

[7] Mr Anania was subsequently sentenced to 13 months imprisonment which was suspended for 2 years pursuant to s 21A of the Criminal Justice Act.He was sentenced to 9 months periodic detention and ordered to pay reparation in the sum of $20,000.He has appealed against both conviction and sentence.

[8] The matter of the appeal has had a most unsatisfactory history and there are still a number of issues which have been raised and left insufficiently resolved.However we are persuaded about some fundamental issues which require us to allow the appeal against conviction and remit the matter to the District Court where the prosecution can decide whether to have a further retrial.

[9] The charge related to an advance from the New Zealand Lotteries Grant Board made to the Kokiri Ki Maungarei Marae at Mt Wellington.Mr Ananiahad become the Executive Officer following the death of a man who had been described as effectively the one man band in managing the business and accounting activities of the Trust.It appears that the appellant did not have the same organisational and commercial skills as his predecessor.

[10] The appellant and another person (allegedly without the knowledge of other members of the Marae Committee) made an application for a grant for the purposes of refurbishing and upgrading the Marae meeting house and to construct a new dining room.The Lotteries Board agreed to a payment of $50,000 plus GST.The sum was received and paid into a National Bank account in the name of the Kokiri Ki Maungarei Marae Trust Board Welfare account.Mr Anania and another were signatories for this account.

[11] The Crown alleged that the money was used to pay a variety of accounts during the following six weeks and the Marae Committee only learnt of the grant after all the money had been spent.

[12] Mr Anania did not give evidence at trial and had declined to speak to a police officer at interview.

[13] Mr Gotlieb who appeared before us was not counsel at either trial.It is submitted that there were a number of radical errors by trial counsel as well as acts or omissions by the trial Judge which meant that there was a miscarriage of justice and that the conviction entered was unsafe.

[14] Matters raised included :

[diamond] Failure of counsel to permit the appellant to give evidence when he wished to do so.

[diamond] Making decisions about the trial in conferences between the lawyers and Judge in the absence of the appellant during the trial and in negotiations about reparation afterwards.

[diamond] The absence of an adequate or proper direction on colour of right.

[diamond] The introduction into the case in its very last stages by a purported consideration of s 339 of the Crimes Act in vague terms with a consequential lack of clarity in the direction.

[diamond] The absence of sustained forensic accounting evidence so that the jury would have an opportunity to intelligently understand the allegations being made.

[15] The Crown submits that basically the appeal is an endeavour to criticise counsel tactics without properly and adequately investigating matters by making unsubstantiated allegations in a superficial affidavit and particularly by endeavouring to present evidence from the bar.Further Mr France contends that the issue of colour of right is a theoretical issue only as this concept was never on the facts of the case a viable proposition.The comments made by the Judge on dishonesty inferentially encompassed all that needed to be said in the particular factual circumstances.It is also argued that there is no justification or basis for the attempt to introduce other or further evidence and none of the standard thresholds have been met.

[16] We accept that there is force in a great deal of the criticism levelled by the Crown.Tactical decisions were made at trial and if it were to be concluded that the trial conduct was inconsistent with firm instructions given or contrary to them an evidential foundation would have to be laid and a proper analysis and investigation undertaken after evidence in reply was received.

[17] Similarly although it is not impossible for a colour of right argument to be mounted in the absence of any explanation (either out of Court or in Court) by an accused in the circumstances of this case although we accept the theoretical purity of the legal argument presented by Mr Gotlieb and all his researches in this area of the law, we are satisfied that the point has little practical application to what actually occurred in this case.

[18] The issue which we are satisfied without further inquiry requires the appeal to be allowed is what can only be concluded as the late introduction into the hearing of an issue about part charges and the possible use of s 339 of the Crimes Act 1961.

[19] Like the Crown we are not persuaded that s 339 has application to a circumstance such as this where there might be contention as to the extent of the misappropriation.However there is strong evidence that the section was used and drawn to the jury's attention perhaps even by the distribution to them of a copy of the section.Part proof is the subject of the question referred to above.

[20] We accept the Crown's submission that s 224 can include the whole of the proceeds or part thereof.But juries are asked to reach determination on the basis of a factual framework which is led in evidence and focussed upon in addresses and summing up.We are not satisfied that fair and adequate consideration was given to the alternative which actually emerged in the verdict of the jury of guilty, as to part.

[21] That is not inconsistent with what was said in R v Koura [1996] 2 NZLR 9.

[22] The indictment was presented on the basis that there had been a receipt of a total sum subject to the condition that it was to be disposed of only in accordance with the stipulated conditions.

[23] The flavour of the case is perhaps best encapsulated in the Judge's summations of the position in the summing up.We note that in discussing the elements of the offence there is a passing reference to the proceeds of the cheque or part of them :

To prove that the accused acted fraudulently, the Crown has to prove that in doing what he did, he acted deliberately and dishonestly knowing that he was acting contrary to his legal obligations to pay the money where directed.It is not sufficient, you see, for the Crown to prove that he simply failed to pay the money where directed.That is because if you are late in paying specific accounts that does not mean you are a criminal, you are simply a late payer.

The Crown must prove beyond reasonable doubt that the accused had the proceeds of the cheque or part of them and that he made a deliberate choice, that is to say he intentionally, deliberately, dishonestly chose not to pay them pursuant to the obligations imposed on him by the Lotteries Boad.

[24] A little later the Judge said :

All the money was spent before any work was done on the wharehui and work on the wharekiai was never started apart from some profiles being put up.

[25] More specifically turning to the Crown case the Judge noted :

The Crown says the accused received the money, he signed the conditions of acceptance, he banked the money and the money was drawn on that account immediately for other purposes and exhausted it within a matter of weeks.Some of the money in the account was used for a trip to Opononi by him, his partners and the others.A very large number of cash cheques were drawn on the account so there is no way of following a paper trial to ascertain where they went.At the end of about six weeks, the money had all been dissipated and no alterations to the wharehui and the dining room had not been started.

...

The Crown says that it is clear that the money was received and that all or part was not accounted for in accordance with the conditions attached to the payment.The only question in issue is whether when the money was spent elsewhere, the accused did so dishonestly.The Crown says that if you look at the overall picture here, there are just too many coincidences for you not to draw the only logical inference that in spending the money other than where it was intended, the accused had a dishonest intent.

[26] In summation of the defence case we note that what the Judge reported is consistent with the allegation made in the affidavit filed in this proceeding by Mr Anania.He said :

It was not until the very last bit of the Judge's summing up where she said, at page 202, quote:"Should you find the accused guilty of misappropriating only part of the amount charged it would be helpful if you indicate in returning your verdict the amount of proportion of the full amount that he misappropriated."When this was said to the jury I was totally taken aback as it has been my understanding as in the previous trial that the Crown had to prove the amount that was set out in the indictment.Peter Kaye on his closing to the jury referred them to the indictment and took them through all the particulars there and in particular the $56,250.00.The whole case was based around that $56,250.00.

[27] That contention has not been challenged evidentially and our reading of the summing up as a whole suggests that the case had been presented and defended on the basis that it was about the entire sum of $56,250 being critical.

[28] While acknowledging that all of the money being misappropriated need not be the case, we accept the force of the appellant's submission that where that is the allegation made, and that is how the case is run, it cannot suddenly be altered without warning and still have a process which is permeated with the essential integrity which is required in every criminal case.Where the alternative of misappropriation of part of the proceeds is advanced by the Crown it is necessary for the trial Judge to deal with that alternative in the summing up and direct the jury as to what it involves as a matter of law and, where appropriate, by reference to the evidence.

[29] The Judge's own summation of the case was this :

Ladies and gentlemen, you must decide whether the Crown has satisfied you whether the accused was acting dishonestly or whether there was just gross mismanagement in the manner in which the Trust's finances were run to the extent that the money was all mixed up and spent because it was not kept track of and as a consequence it did not reach the intended projects.

[30] Having then commented on various matters arising "out of counsel's closing submissions" (which appear to have been comments critical of the defence contentions) and the Judge having dealt with housekeeping matters, she eventually made the comment about misappropriating only part which is set out above.Later, at the end of the summing up she added :

Should you find the accused guilty of misappropriating only part of the amount charged, it would be helpful if you could indicate in returning your verdict the amount or proportion of the full amount you have that he misappropriated. You have to be unanimous in your verdict but are not required to give reasons.

[31] In accordance with normal practice the Judge asked counsel whether they had any matter to raise out of the summing up.Nothing of consequence was mentioned here apart from a reference to the highlighted bits of a section about which there is now controversy as to whether that was a reference s 339 or s 224 or both.

[32] Later the question outlined above was asked by the jury and dealt with as we have recorded in para [5].

[33] We are persuaded that although the Crown may well be correct in the theoretical position which is advanced as to the necessary ingredients of proof under s 224, the issue of conviction on the basis of part misappropriation was not adequately or intelligibly set before the jury.

[34] We are forced to conclude that decisions about trial conduct, cross-examination, the calling of the witnesses and the like may well have been influenced by the "high ground" position focussed on by the Crown and clearly apparent up until its closing address and in the result the summing up failed to adequately draw matters which were of relevance to the jury's attention.

[35] We are mindful that there have already been two trials and that the case relates to matters which occurred many years ago.Despite the inconvenience and frustration it is essential in every case that there is a process which is fair, transparent and beyond complaint.We are unable to conclude those tests have been fulfilled in these circumstances.Accordingly the appeal against conviction must be allowed.The matter is remitted to the District Court where those responsible can determine what further steps are to be taken.

Solicitors:

Crown Law Office, Wellington