R v Sandy CA325/01 [2001] NZCA 414 (29 November 2001)

Last Updated: 4 June 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA325/01

THE QUEEN

V

ADAM CAMERON SANDY

Hearing:	28 November 2001
Coram:	Gault J Robertson J Goddard J
Appearances:	C Cull for Appellant S Gray for the Crown
Judgment:	29 November 2001

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Background

[1] Adam Sandy stood trial in the District Court in Auckland in May 2001 on an indictment containing nine counts that with intent to defraud he used a document to obtain a pecuniary advantage. All the offences related to using a James Gilmour & Co Limited invoice between 20 September 1999 and 15 December 1999 to obtain goods ranging in value from $65.05 to $238.84.
[2] Mr Sandy was employed as a chef at Mammas Restaurant in Massey and in the course of that employment he had authority to obtain goods for his employer using an account with James Gilmour and Co. Limited. There was no argument that between 20 September and 25 October he made personal purchases by quoting the company account number and obtaining goods to a total value of $997.79. Following the termination of his employment in late November 1999 Mr Sandy made two further purchases (to total value of $327.60) at Gilmours, again using the Mammas Restaurant company account.
[3] Mr Sandy admitted making all the purchases for his own use but claimed that he had authority to do so and that he had subsequently paid for the items.
[4] After trial before a Judge and jury in the District Court at Auckland in May 2001 Mr Sandy was convicted on all counts. Subsequently on 17 August 2001 he was sentenced to six weeks periodic detention and ordered to make reparation in the total sum of $1,340. He appealed against both conviction and sentence.
[5] The appeal against conviction was advanced on the basis that:

• (a) the verdicts of the jury should be set aside on the grounds that they were unreasonable or could not be supported having regard to the evidence;

(b) that there had been a miscarriage of justice in the way in which he had been defended by trial counsel; and
(c) that the sentence was manifestly excessive.

Appeal

[6] When the matter was first called in this Court we discussed with counsel the fact that in respect of the second ground there were on file conflicting affidavits from the appellant and his companion on one hand and trial counsel on the other as to factual issues relating to preparation for and conduct of the trial. It was common ground that no written instructions had been obtained.
[7] Some of the affidavits had been filed only recently and it was clear that time had to be granted for further instructions to be obtained. It was noted that there had been no applications for leave to cross-examine.
[8] This was yet another case where because of the absence of clear written instructions issues relating to the conduct of trial counsel became problematic.
[9] On the basis of the written material it appeared that there was on the evidence called a sufficient foundation for the verdicts reached but substantial issues as to the absence of evidence from the appellant and his companion particularly on the question of honest belief in his ability to charge items and pay later.
[10] When the matter was called again in the afternoon Ms Gray for the Crown responsibly accepted that in the absence of unequivocal material as to the instructions which had been given to trial counsel, the interests of justice required that the appeal should not be opposed on this ground.
[11] We accordingly allowed the appeal and vacated all convictions. We now order a new trial but note that at an early stage in the process the possibility of police diversion, if full restitution had been made, was considered. It will be open to those now responsible for the completion of this matter to consider all sensible alternatives for obtaining its final disposal.

Solicitors

Kim Holden, Kaikohe

Crown Solicitors, Auckland