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The Queen v Huata and anor [2006] NZCA 299 (20 October 2006)

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The Queen v Huata and anor [2006] NZCA 299 (20 October 2006)

Last Updated: 14 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA411/05
CA413/05

THE QUEEN

v

WI TE TAU HUATA
DONNA AWATERE HUATA

Hearing: 3 and 4 October 2006

Court: William Young P, Glazebrook and Goddard JJ

Counsel: S D Patel for Mr Huata
J Bioletti for Mrs Awatere Huata
B M Stanaway and G Andreé Wiltens for Crown

Judgment: 20 October 2006 at 10 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] The Pipi Foundation was set up in 1999 as a charitable trust. Its primary purpose was to run a literacy programme developed by Mrs Donna Awatere Huata and a colleague. Although Mrs Huata was not a trustee, she was closely associated with the operations of the Foundation which received substantial funding from the Ministry of Education. At all times material to the case she was a Member of Parliament.
[2] The Crown alleged that between 1999 and 2002 Mrs Huata used the funds of the Foundation for the payment of personal debts (some of which she owed jointly with her husband, Mr Wi Huata). In the latter half of 2002 allegations to this effect surfaced and generated much publicity. As a result Mr Huata became a trustee of the Foundation, and indeed its chairman. From late 2002 a good deal of effort was devoted by him and his co-trustees to the reconstruction of the Foundation’s records (including the creation of a reconstructed cashbook). On the Crown case, this reconstruction exercise, the subsequent supply to an accountant of the material generated with a view to obtaining a report exonerating Mrs Huata of wrongdoing and later efforts to persuade a witness to lie to the authorities about a cheque amounted to an attempt by Mr and Mrs Huata to defeat the course of justice.
[3] In August 2005 Mr and Mrs Huata stood trial before Judge Joyce QC and a jury in the District Court at Auckland on a total of six charges alleging the use of cheques drawn on the Foundation’s bank account with intent to defraud and one count of attempting to defeat the course of justice. Both were found guilty on the count of attempting to pervert the course of justice. On the fraud counts, Mrs Huata was found guilty on five and Mr Huata guilty on four. Mrs Huata was acquitted on the other fraud count (which was laid only against her). They were subsequently sentenced to terms of imprisonment (in the case of Mr Huata with leave to apply for home detention).
[4] Both now appeal against conviction and sentence although the sentence appeal was not pressed by Mrs Huata.

Factual background

Overview

[5] Mrs Huata was the settlor of the Foundation. As well, she gifted to the Foundation the reading programme we have mentioned. The Foundation received $840,000 in government funding associated with the provision of literacy services based on this programme. Mrs Huata was never a trustee of the Foundation. This would appear to have been for reasons associated with political sensitivities. Mr Huata only became a trustee late in the piece, after the fraud allegations against Mrs Huata first surfaced. So, at the time of the alleged frauds, neither was a trustee.
[6] The affairs of the Foundation were not conducted with much formality. Meetings of the trustees were held irregularly, if at all. The business of the Foundation was largely conducted either at Mr Huata’s orchard business (Totally Hawkes Bay Ltd) or at the home of Mr and Mrs Huata. Cheques were customarily pre-signed in blank. Of the $840,000 in government funding paid to the Foundation, almost $170,000 was disbursed by way of cheques made payable to cash. The fraud charges which the appellants faced were associated with six of these cheques.
[7] Mrs Kathleen Skipworth was the initial chair of the trustees and she also ran the day to day administration of the Foundation from the premises of Totally Hawkes Bay Ltd. Mrs Skipworth kept a cashbook. She left the Foundation in May 2002 and was subsequently prosecuted for the theft of forty pre-signed Foundation cheques which she completed to her own benefit, receiving goods or cash to a total of nearly $21,700. This offending occurred after May 2002, but it appears that she had begun defrauding the Foundation prior to her departure. In the course of the police investigations into her offending, she alleged that Mr and Mrs Huata had been using Foundation funds for their own purposes. One of the purposes alleged was a stomach stapling operation which Mrs Huata had paid for privately. Given Mrs Huata’s profile as a Member of Parliament and earlier publicity associated with her loss of weight (which had not been attributed to surgery), these allegations attracted a good deal of media interest.

Count one

[8] The Crown alleged that on or about 4 November 1999 Mr and Mrs Huata used a National Bank cheque made out to cash for $6,110 fraudulently and with intent to obtain a pecuniary advantage for themselves. The cheque is in the handwriting of Mrs Huata other than in respect of the two signatures. It was cashed by Mrs Huata’s electoral agent, Mrs Patricia Kyle, at the National Bank at Hastings. She said that she was instructed by Mrs Huata, in the presence of Mr Huata, to cash the cheque and, with the cash, to buy a cash cheque to pay Woodford House for school fees owed by both Mr and Mrs Huata. On her evidence, Mrs Kyle complied broadly but not precisely with these instructions. Instead of cashing the cheque, she used it to pay for a bank cheque in the sum of $6,105 payable to Woodford House. This was paid to Woodford House and credited to the appellants’ account. The difference between the $6,110 Foundation cheque and the $6,105 bank cheque was absorbed by bank fees.
[9] The Foundation cashbook maintained by Mrs Skipworth recorded the cheque as being payable to "Te Runanga O Ngai Tane", an organisation of which Mr Huata was a trustee. Produced as part of the reconstruction exercise was an invoice for $6,110 dated 30 October 1999 and addressed to the Foundation. It purports to be from Hira Huata (who is Mr Huata’s sister) and relates to "the hui on Te Reo Maori Reading Resources". At the bottom of the invoice is the notation in handwriting and signed by Hira Huata "Received from the Pipi Foundation, Kathy Skipworth of $6,110 cash". The Crown case was that the invoice was created in February 2003 on a computer associated with Mr and Mrs Huata.
[10] The evidence of Mrs Kyle was that Mr Huata was present in the room when Mrs Huata gave her the Foundation cheque with the instructions to cash the cheque and to purchase with cash a bank cheque payable to Woodford House. On the same day Mrs Kyle was involved in other transactions of a broadly similar nature but involving a Te Runanga O Ngai Tane cheque. She said that she was given this cheque by Mr Huata, instructed to cash it and to use the cash to buy bank cheques to settle other educational liabilities, instructions she said that she carried out.
[11] Mrs Huata’s explanation at trial was that Te Runanga O Ngai Tane Wänanga Consultants had provided services to the Foundation and were entitled to be paid, that this organisation owed money to Hira Huata and it was on Hira Huata’s instructions or with her authority that the cheque was used to fund the payment of the Woodford House school fees. Mrs Huata’s evidence was that it was most unlikely that she told Mrs Kyle to change the cheque into cash and then use cash to pay the school fees. Indeed she claimed that it was unlikely that there had been any direct dealing between her and Mrs Kyle that day. She was not specific, however, as to how the cheque came to be in Mrs Kyle’s possession and in her evidence speculated that it could have been given to her by either Mr Huata or Mrs Skipworth.
[12] Mr Huata did not give evidence at trial. His defence in essence was that he was not involved with this transaction.

Count two

[13] This count (laid only against Mrs Huata) alleged the use of a National Bank cheque dated 15 December 2000 payable to IHI Communications and Consultancy Limited for $24,680. This cheque, as with the first, was completed by Mrs Huata other than in relation to the signatures. On 15 December 2000 Mrs Huata was in Wakefield Hospital recovering from her stomach stapling surgery. On that day, this cheque was deposited by Mrs Huata’s daughter into the IHI bank account, an account which was controlled by Mrs Huata. The cheque, however, was dishonoured (because a payment from the Ministry of Education had been delayed) and it was never re-presented.
[14] The original Foundation cashbook does not record the cheque although the dishonouring of the cheque was recorded in the receipts section. The reconstructed cashbook recorded this as a payment to "IHI Communications". On a computer received from Mr Huata, there was an electronic version of an invoice from IHI Communications and Consultancy purporting to be for $24,680 apparently issued on 5 December 2000. This document was created as part of the reconstruction exercise. No subsequent cheque corresponding to this cheque was ever issued. So if there was a genuine debt for $24,680 owed by the Foundation to IHI, it was not later discharged.
[15] At the relevant time Mrs Huata had a liability of around $18,000 for hospital expenses associated with her surgery. The Crown case was that this cheque was drawn for the purpose of facilitating the meeting of that liability.
[16] In her evidence, Mrs Huata said that the cheque had been written out in early December 2000 and that she had given it to her daughter to deposit. She also conceded that she had probably created the invoice much later, perhaps in 2003, although she maintained that IHI had performed work for which it was entitled to be paid. She said that she did not re-present the cheque as the Foundation had other and more pressing calls on its funds.

Count three

[17] This count focused on the use of a Foundation cheque payable to cash in the sum of $30,946 which was dated 21 December 2000. The date "21/12/00" and the amount "$30,946" are in the handwriting of Mrs Huata. The rest of the cheque was filled in by Mrs Skipworth. The cheque was cashed at the Hastings branch of the National Bank on 22 December 2000 by Mrs Skipworth. Her evidence at trial was that she gave all the cash to Mrs Huata so that Mrs Huata could pay for her stomach stapling operation and also school fees. Mrs Huata had been discharged from hospital on 19 December.
[18] On 22 December 2000 :

(a) Mrs Huata used cash to purchase a National Bank cheque (from the Queen Street, Hastings branch of the bank) made payable to Wakefield Hospital in the sum of $11,000. It is not clear what time of the day this transaction occurred.
(b) $3,400 in cash was deposited to Mrs Huata’s BNZ credit card account. This transaction occurred just before midday at the Havelock North branch of the BNZ.
(c) Mrs Huata used cash to purchase a BNZ cheque for $3,000 payable to Woodford House (a cheque which was received on 8 January 2001 by Woodford House as payment for school fees owed by the appellants). This cheque was purchased just after midday at the Havelock North branch of the BNZ.
(d) Mrs Huata purchased a second BNZ cheque payable to Iona College for $3,000, a cheque which she appears to have personally delivered to Iona College that day. This cheque was purchased at the same time and place as the Woodford House cheque.

[19] On 29 December 2000, Mrs Huata, using cash, purchased a $7,000 bank cheque at the Hastings branch of the BNZ which was made payable to Wakefield Hospital.
[20] The original Foundation cashbook records the $30,946 cheque but does not describe what the payment was for. The reconstructed cashbook records the cheque as being payment for "Trustees’ Expenses". Enclosed with the reconstructed cashbook were five receipts and one invoice for a total of $39,000 (and not $30,946). On the Crown case these documents were false and designed to deceive.
[21] In her evidence Mrs Huata denied telling Mrs Skipworth that the money was required for the stomach stapling operation and school fees. She said that she assumed that the cheque was legitimate when she filled in some of the details on it. She explained the receipts and invoices (totalling $39,000) were for more than had been paid because one was for work which had not then been performed. She claimed that she paid for the surgery from cash which she had managed to accumulate in small amounts by way of savings from her parliamentary salary and that the other payments were made from cash which her husband had put aside from his orchard business and had come from his safe.

Count four

[22] On 6 July 2001 a Foundation cheque, payable to cash in the sum of $10,650, was cashed at the National Bank, Stortford Lodge. The handwriting on this cheque (other than the signatures) is of Mrs Huata. On the same day as this cheque was cashed there were two cash transactions totalling $7,000; (a) $3,500 paid to Iona College for school fees associated with one of the appellant’s daughters; (b) $3,500 in cash was paid to Woodford House for school fees in relation to another daughter.
[23] The original Foundation cashbook records this cheque as "Rutherford PS resources". The reconstructed cashbook records it as "Maria – W K S P travel" and associated with this is a handwritten invoice/receipt which purports to be for travel and disbursements.
[24] Mrs Huata’s evidence was that the cash for the payments she made came from Mr Huata.

Count five

[25] On 3 December 2001 a Foundation cheque payable to cash in the sum of $7,923 was cashed by Mrs Skipworth at the Hastings branch of the National Bank. Mrs Skipworth said at trial that she gave the money to Mrs Huata
[26] On 3 and 4 December 2001, (a) $3,000 was paid in cash to Iona College for school fees owed by the appellants, and (b) $3,400 in cash was paid to Woodford House for school fees owed by the appellants. The Foundation cashbook records the cheque as a payment for "trustees fees – contract work". The reconstructed cashbook records this as "Trustees Payments" which are particularised as being "wages" and "costs" for "Kathy".
[27] Mrs Huata’s evidence was that the school fees were paid from cash which Mr Huata gave her.

Count six

[28] This count was laid only against Mrs Huata who was acquitted on it. So there is no need to discuss the detail of the allegation.

Count seven

[29] In late 2002, the allegations made by Mrs Skipworth against Mr and Mrs Huata were taken up by the media.
[30] Mr Huata became a trustee of the Foundation and was subsequently appointed as the chair of the trustees. There then followed the re-creation exercise involving minutes, invoices and other documents. Mrs Huata then instructed accountants, initially a Mr Skinner, and through him, a Mr Stevens, to provide a report as to the challenged expenditure. Mr Stevens was given explanations for the expenditure and documents which, at face value, supported those explanations. On 29 January 2003, he issued a preliminary report for Mrs Huata which in effect cleared her. Mrs Huata then provided a copy of that report to both her political party and the police. On the Crown case, the material which was constructed during this time, including false invoices, was intended to provide apparently innocent explanations to cover up the frauds committed by Mr and Mrs Huata.
[31] The Crown case in relation to count seven also relied on the evidence of Mrs Kyle to the effect that on 21, 22 and 24 August 2003, Mrs Huata and Mr Huata were in contact with her and this culminated in a personal visit to her from Mrs Huata (who had been driven to see her by Mr Huata) at which she was asked to lie about the source of the money she had used to buy the bank cheque to pay Woodford House (associated with count one).
[32] In her evidence, Mrs Huata agreed that some documents were re-created but simply to record what had truly happened. She admitted that she had had discussions with Mrs Kyle at the time alleged but denied that she had asked her to lie.

Mrs Huata’s appeal

Overview

[33] For Mrs Huata, Mr Bioletti argued that the Judge ought to have granted an adjournment of the trial and, as well, challenged the conviction on count three on a number of grounds. Obviously the adjournment argument applied in relation to all counts on which Mrs Huata was convicted. Mr Bioletti also argued that at least some of the difficulties which he identified with count three affected the safety of the jury’s verdicts on the other counts.

Failure to grant adjournment of the trial – preliminary comments

[34] The trial was scheduled to start on 25 July 2005 with a time estimate of four weeks.
[35] On 25 May 2005, Mrs Huata’s then counsel sought leave to withdraw and this was granted in early June. Legal aid would appear to have been applied for shortly afterwards and Mrs Huata instructed Mr Foley and a junior. There was some inconsistency between the relevant dates as indicated to us by Mr Bioletti and Mr Stanaway but there can be no doubt that Mr Foley and his junior were required to prepare for trial under time pressure – pressure which was exacerbated when major difficulties with the Legal Services Agency arose on 15 July. These difficulties were not resolved until 18 July.
[36] On 18 July Mr Foley sought an adjournment of the trial. This application was declined by Judge Joyce QC who did, however, indicate that he was prepared to defer the start of the trial by one week, until 1 August. When the trial started on the morning of 1 August 2005, Mr Foley again applied unsuccessfully for an adjournment.
[37] Mrs Huata, in an affidavit sworn in support of the appeal, contends that "the need to prepare the defence ran a poor second to the need to avoid losing the trial fixture".
[38] This aspect of the case was presented with some brevity by counsel and there is, in truth, a limit to what could be usefully said. The case was reasonably simple. There were six counts of fraud involving, on the Crown case, similar behaviour and a closely interconnected charge of attempt to defeat the course of justice. Our impression overall is that Mrs Huata was competently represented. To establish that the refusal of the adjournment resulted in a miscarriage of justice, Mrs Huata has to show that the refusal prejudiced her in some way. Mr Bioletti sought to do so in two respects which also form the basis of the next two appeal points. It is therefore convenient to discuss those two appeal points before expressing a conclusion on the adjournment argument.

Count three – the new evidence point

[39] Associated with the adjournment issue is fresh evidence which Mrs Huata seeks to adduce. This relates to a print out of bank withdrawals associated with the joint bank account of Mr and Mrs Huata with the ANZ Bank which refers, inter alia, to a withdrawal of $500 from the Stortford Lodge BP station in Hastings on 22 December 2000. This printout was in evidence at trial but did not disclose the timing of the withdrawal. The new evidence consists of banking records which indicate that the $500 withdrawal was at 6.56am.
[40] In her affidavit in this Court Mrs Huata explained that she was not aware at the time of her trial that this information (ie as to timing) was available and then went on:

As a result of becoming aware of this information, I believe that on 22 December 2000 I would have travelled in to Hastings from Bridge Pa at around 6.40am and that after checking the balance of the account I would have withdrawn $500 from the ATM at the Stortford Lodge BP at 6.56am. I believe I would not have travelled back to Bridge Pa until I had completed my business for that day which included purchasing the bank cheque to pay for my operation, paying for school fees and paying my credit card account.

[41] Mrs Skipworth’s evidence was that on that day she went into the National Bank at Hastings at around 9am (where she cashed the cheque) and then drove back to Bridge Pa where she saw the appellant travelling in the opposite direction, flagged her down and gave her the money. She says the appellant then travelled towards Hastings in her car.
[42] Mr Bioletti took us through the banking transactions which occurred on this day and tied that evidence into the evidence which Mrs Huata gave at trial when she attempted to re-create her movements on 22 December. It is clear that her re-creation was, in some respects, incorrect in part because she did not have the 6.56am withdrawal as a reference point for her re-creation. As well that re-creation is not a good fit for the locations at which the different banking transactions occurred, see the discussion in [18] above. Indeed a similar comment could be made of the re-creation she has provided in her affidavit which would appear to have been prepared before much, if any, attention had been paid to the different bank branches which were used on 22 December and the time at which the BNZ transactions took place.
[43] In context, however, the new evidence seems to us to immaterial. It is not necessarily the case that Mrs Huata made the withdrawal at 6.56am. And if she did, the associated timings are not inconsistent with the Crown case. Mr Bioletti said that the timing of the withdrawal raised the question why Mrs Huata would withdraw $500 in cash if she knew that she had more than $30,000 coming to her from Mrs Skipworth. But this question (or a related question why she would have withdrawn $500 if she had just received more than $30,000 in cash) arose on the material which was before the jury.

Count three – the note denomination issue

[44] Mrs Skipworth’s evidence was that she changed the cheque into $100 notes and gave those notes to Mrs Huata. The banking records associated with the cashing of the cheque recorded $30,000 under a column headed "$100/$50". The denominations of the notes which made up the balance of $946 are not recorded. Significantly for present purposes, the banking records associated with the cheque for $11,000 acquired from the Stortford Lodge branch of the National Branch indicated that the notes which were used were 8 x $100 notes, 100 x $50 notes, 205 x $20 notes, 110 x $10 notes, 1 x $5 notes
[45] So the Crown case depended on the correctness of one or more of the following assumptions:

(a) contrary to Mrs Skipworth’s evidence, some of the notes given to her were $50 notes; or

(b) Mrs Huata changed some of the notes; or

(c) Mrs Huata had further cash (a total of $5,205 in $20, $10 and $5 notes less an allowance for the $946 and the $500 withdrawn that morning).

The Crown primarily relied on the theory that Mrs Huata changed the notes and this was very much the way its case was left to the jury.

[46] Mr Bioletti complained that the Judge in effect left it to the jury to speculate as to the changing of the notes in the absence of any evidence to suggest that this is what had happened. He also noted that the defence at trial did not make anything of this point; another consequence he said of the pressured circumstances in which preparation occurred.
[47] The cheques payable to Woodford House and Iona College and the payment on the credit card account were all made with $100 notes. As well $800 of the $11,000 paid to obtain the $11,000 bank cheque involved the use of $100 notes. It is clear that on 22 December 2000 Mrs Huata had possession of a substantial number of $100 notes. Mrs Huata claimed that her cash transactions that day were funded from ATM withdrawals she had made over time and cash orchard sales made by her husband. This explanation did not, in itself, account for her possession of so many $100 notes (which are not dispensed by ATMs and are not the normal currency in which fruit purchases are made). At interview, Mrs Huata addressed this difficulty by saying that she had changed smaller denomination notes into $100 notes for ease of storage. It would not be difficult to treat this explanation as being material (albeit in inverted form) to the possibility that Mrs Huata had changed some $100 notes which, on the Crown case she received from Mrs Skipworth, into different denominations.
[48] There is also a broader context to be considered. Mrs Skipworth’s evidence was a good fit for cash payments which Mrs Huata made around the time the cheque was presented. Although pressed on this point in cross-examination, Mrs Huata was not able to give a complete explanation of how Mrs Skipworth could have known that Mrs Huata had been involved in so many substantial cash transactions associated with her surgery and school fees just after the Foundation cheque was cashed. There was no evidence of other use to which that money was put. In addition there was a more general pattern of cash payments following the cashing of Foundation cheques as our analysis of the counts indicates. Finally, the course of conduct described by Mrs Skipworth was very similar to the conduct described by Mrs Kyle.
[49] In context we think that it was open to the jury to infer that the source of the cash used to obtain the $11,000 bank cheque was the Foundation cheque.

The refusal of the adjournment – conclusions

[50] As to the timing of the $500 withdrawal, we refer to what we have said in [43] above. On the note denomination issue, we have held that it was open to the jury to infer that Mrs Huata had changed notes given to her by Mrs Skipworth. So neither ground provides in itself the basis for us allowing the appeal. In issue in relation to the challenge to the refusal of the adjournment is the slightly different question whether the failure by the defence to raise these issues at trial (which Mr Bioletti attributes to the pressured circumstances in which the defence case was prepared) resulted in a miscarriage of justice.
[51] At trial the hard facts of location, timing and detail (ie the denomination of notes used) in relation to the banking transactions on 22 and 29 December were not the subject of detailed analysis. With Mr Bioletti’s assistance at the hearing of the appeal, we were able to extract from the exhibits the detail set out in [18] and [19] above as well as to identify the time at which the $500 was withdrawn. If there had been the same sort of detailed analysis at trial, Mrs Huata’s reconstruction in evidence of the key events would no doubt have been different. But Mr Bioletti was not able to persuade us that this would have been of real assistance to Mrs Huata. We see nothing relevant in the timing of the $500 withdrawal. Further, her possession on 22 December of so many $100 notes might be thought to have provided some support for Mrs Skipworth’s evidence. So at best for the defence, the note denomination issue was two-edged. As well, three different bank branches were used on 22 December and a fourth on 29 December. On 22 December, the cheque for $30,946 was cashed at the Queen St, Hastings branch of the National Bank, the $11,000 bank cheque was purchased at the Stortford Lodge branch of the National Bank and the three transactions involving the payment against the credit card liability and the purchase of the two cheques used to pay school fees took place at the Havelock North branch of the BNZ. On 29 December 2000, a fourth branch (the Hastings branch of the BNZ) was used to acquire the bank cheque for $7,000. A possible explanation for this pattern of events is that Mrs Huata was seeking to limit the attention which her cash transactions might have attracted had they all occurred at the same time and at the same bank branch. In this context, we think that a detailed exploration of all of this at trial would have been to Mrs Huata’s disadvantage.
[52] Accordingly see no material prejudice to Mrs Huata in relation to the two points argued by Mr Bioletti associated with the refusal of the adjournment and thus no associated miscarriage of justice.

Alleged misdirection as to count three

[53] Mr Bioletti also maintained there had been a misdirection as to count three.
[54] The use of the document relied on by the Crown was the cashing of the cheque, an act which was physically carried out by Mrs Skipworth. In [39] of the summing up the Judge noted that "use by an agent acting on the instructions of an accused is use by that accused".
[55] In his submission Mr Bioletti argued:

On Skipworth’s own evidence, she was a trustee of the Pipi Foundation, she was told the purpose for which the proceeds were to put and she nevertheless went ahead and used the document to obtain a pecuniary advantage by presenting it at the bank. In those circumstances she cannot be said to be the innocent agent of the accused.
The use of documents by an agent is only available where the agent is an innocent agent. Accordingly it is submitted there is no proper legal basis for use by the accused of the relevant document.

[56] In the course of the argument, Mr Bioletti to some extent moved away from this submission and instead developed the perhaps inconsistent contention that Mrs Skipworth, as a trustee of the Foundation, was a victim and that, for this reason, her cashing of the cheque could not form the actus reus of an offence by Mrs Huata.
[57] This latter submission invoked an argument which was successful in R v Thompson CA404/04 27 April 2005. But the key to that decision was that the victim’s actions were not carried out as the agent of the appellant (see [18]). Mrs Skipworth was not, in a conventional sense, the victim of the fraud (as the money which was misappropriated did not belong to her). Further, on the evidence which the jury must have accepted, Mrs Skipworth’s cashing of the cheque was on the direct instructions of Mrs Huata. Mrs Skipworth was thus, for the purposes of the criminal law, acting as Mrs Huata’s agent. It would be entirely unreal not to recognise the presentation of the cheque as being a use of it by Mrs Huata.
[58] We add that, as Mr Bioletti’s written submission recognised, there was another sense in which Mrs Skipworth was not a victim. On her evidence she knew that the cheque was being cashed to provide funds to meet personal debts of Mrs Huata. It is difficult to see how she could not have recognised that this was a fraud. We agree that the expression "innocent agent" is often used where the actus reus of a crime has been performed by a third party on the instructions of the accused, see for instance R v Paterson [1976] 2 NZLR 394 (CA) and R v Fowlds CA222/00 13 December 2000. But there is no credible basis upon which criminal liability of the primary offender (ie the person who commissioned the offence) can depend on the innocence of the agent. If the agent is innocent, the primary offender is guilty as a principal offender. If the agent is not innocent, then the primary offender will likewise be guilty, at least as a party.

Result

[59] For the above reasons we dismiss Mrs Huata’s appeal against conviction. We also formally dismiss her appeal against sentence.

Mr Huata’s conviction appeal

Overview

[60] Mr Patel presented Mr Huata’s conviction appeal on the grounds that:

(a) The verdicts of the jury should be set aside as unreasonable and unable to be supported having regard to the evidence, and

(b) New evidence has now come to light since the trial that is material to the defence.

It is most convenient to discuss the first ground in relation first to the fraud counts and secondly to the count of attempting to defeat the course of justice.

The verdicts of the jury should be set aside as unreasonable – the fraud counts

[61] The case against Mr Huata was strongest as to count one. On the evidence of Mrs Kyle, the appellant was present when Mrs Huata gave her a Foundation cheque and the instructions as to what to do with it. On the Crown evidence, he must have known that the use of a cheque in such circumstances was illegitimate, a point emphasised by the odd instructions about cashing the cheque and purchasing a bank cheque for cash. The Crown case as to all of this was strengthened by Mrs Kyle’s evidence that broadly similar transactions occurred the same day in relation to other school fees in respect of which Mr Huata was plainly the prime mover.
[62] On the other counts, the Crown relied primarily on what could be inferred from the joint arrangements made by Mr and Mrs Huata as to their joint liabilities, their close working relationship and his involvement in the reconstruction exercise. We might add that there is no evidence of overpayments, that is both Mr and Mrs Huata each independently paying the same bill. This suggests co-ordination as to how their liabilities were met.
[63] All in all we are satisfied that there was an appropriate evidential basis for the jury’s verdicts.

The verdicts of the jury should be set aside as unreasonable – the attempting to defeat the course of justice charge

[64] We think that the evidence on this count was more than adequate to warrant conviction, particularly given the jury’s verdicts on the fraud counts. Given those verdicts, the only inference which could sensibly be drawn from the creation of false documents associated with the underlying transactions was an intent to defeat the course of justice.
[65] Unsurprisingly this point was not much pressed by Mr Patel.

New evidence

[66] The new evidence point relates to a TV3 interviews of Mrs Skipworth. What was broadcast was a compilation of two separate interviews with a voiceover from the presenter. What Mr Huata particularly relies on are statements by Mrs Skipworth to the effect that Mrs Huata wanted to keep information about the Foundation away from him. The most relevant portion of the transcript is as follows:

Amanda Miller

(voiceover): Kathy Skipworth says she was made to cut out pages and rewrite entries.

Kathy Skipworth: By this time Donna um had written over the bank statements to tell me where all the cheques had gone, although I did not have any receipts at that time.
Amanda Miller

(voiceover): And she had to keep ledger book at her home because Awatere Huata did not want her husband to see it.

Kathy Skipworth: So I was told I was never to let Wi know how much money we had in our account, never to show him any of our bank statements, and the book.

Amanda Miller: Because then we would know what was going on?

Kathy Skipworth: Maybe, yes, maybe.

[67] Mr Patel noted the assertions made by Mrs Skipworth as to instructions to keep the ledger book and bank statements away from Mr Huata and claimed that this would have provided material upon which Mrs Skipworth could have been cross-examined to Mr Huata’s advantage.
[68] The co-conspirators’ rule was not invoked in this case and, leaving it aside, what Mrs Huata said to Mrs Skipworth was not evidence in relation to Mr Huata. So technically, there might have been an issue whether Mr Huata’s counsel could have cross-examined Mrs Skipworth on what Mrs Huata had told her. We accept that so technical an approach would almost certainly not have been insisted on by either the trial Judge or the prosecutor but the corollary of this is that if counsel for Mr Huata had sought to cross-examine Mrs Skipworth on the proposition that Mrs Huata had instructed her to keep documents and information associated with the Foundation away from Mr Huata, he would have been required to allow Mrs Skipworth to place in context any acceptance of that proposition.
[69] The transcript of Mrs Skipworth’s interview by the Serious Fraud Office suggests that the reason why Mrs Huata wanted to keep information about the financial affairs of the Foundation way from Mr Huata was because he had been pressuring her to be paid money from the Foundation:

DRAIN ... [B]ut the role, you’ve talked generally of the role of Donna Huata, what about Wi Huata, what was his role in the Pipi?
SKIPWORTH Wi never ever had a role in Pipi. When Pipi funding was coming in, Donna used to say to me, don’t ever tell my husband how much money we’ve got in the bank. If he ever asks, you know what to say and which he did on, you know a few occasions and I used to say to him, oh look we’ve paid all the bills and its pretty lean, but then I’d find out when I’d go and do the ledger book that, oh goodness ex amount of dollars has gone over to Te Huawhenua or ex amount of dollars has gone to Te Runanga o Tani [sic].
DRAIN Is there any, okay, what did you do about that?
SKIPWORTH I didn’t, no.
DRAIN Did you discuss it with either of the Huata’s?
SKIPWORTH Well Donna would say to me, well he pressured me for money and had to give it, now I don’t know that. I, I was never part of their debates when it came to their finances.

[70] In argument Mr Patel noted that the Crown at trial had not alleged impropriety in relation to the payments made to Te Huawhenua Trust Board and Te Runanga of Ngai Tane (which were both associated with Mr Huata). Recognising as we do that this is so, we are nonetheless firmly of the view that this was an area of the case which would have been very dangerous for counsel for Mr Huata to explore. Given this, we think that if counsel for Mr Huata had known what Mrs Skipworth had said to TV3, he would not have thought it safe to explore this issue in cross-examination of Mrs Skipworth for fear of damaging Mr Huata’s position.
[71] Accordingly we see nothing in the new evidence point.

Mr Huata’s sentence appeal

[72] When the trial Judge sentenced Mr Huata, he noted that he was, in relation to the fraud counts, the minor offender. On those counts he was sentenced to a total of twelve months imprisonment. On count seven he was sentenced to a cumulative term of imprisonment of twelve months. So the total term of imprisonment imposed was two years. The Judged granted him leave to apply for home detention and deferred the commencement of his sentence for two months until the date on which the Parole Board determined his application for home detention.
[73] As it turned out, the home detention application was unsuccessful and Mr Huata was taken into custody on 15 October 2005. He was subsequently granted bail by this Court.
[74] The only issue taken with sentence by Mr Patel relates to whether the overall sentence outweighed the totality of the criminality. He suggested the genesis of the attempting to pervert the course of justice charge arose out of an attempt to deflect the media interest in the matter and maintained that a total sentence of 18 months imprisonment might have been appropriate.
[75] We see nothing in the sentence appeal. The frauds involved not insubstantial amounts of money and a gross breach of trust. The attempt to defeat the course of justice involved a sustained exercise in dishonesty. The sentence imposed by the Judge strikes us as being very moderate.

Solicitors:
Crown Law Office, Wellington

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[1]	The Pipi Foundation was set up in 1999 as a charitable trust. Its primary purpose was to run a literacy programme developed by Mrs Donna Awatere Huata and a colleague. Although Mrs Huata was not a trustee, she was closely associated with the operations of the Foundation which received substantial funding from the Ministry of Education. At all times material to the case she was a Member of Parliament.
[2]	The Crown alleged that between 1999 and 2002 Mrs Huata used the funds of the Foundation for the payment of personal debts (some of which she owed jointly with her husband, Mr Wi Huata). In the latter half of 2002 allegations to this effect surfaced and generated much publicity. As a result Mr Huata became a trustee of the Foundation, and indeed its chairman. From late 2002 a good deal of effort was devoted by him and his co-trustees to the reconstruction of the Foundation’s records (including the creation of a reconstructed cashbook). On the Crown case, this reconstruction exercise, the subsequent supply to an accountant of the material generated with a view to obtaining a report exonerating Mrs Huata of wrongdoing and later efforts to persuade a witness to lie to the authorities about a cheque amounted to an attempt by Mr and Mrs Huata to defeat the course of justice.
[3]	In August 2005 Mr and Mrs Huata stood trial before Judge Joyce QC and a jury in the District Court at Auckland on a total of six charges alleging the use of cheques drawn on the Foundation’s bank account with intent to defraud and one count of attempting to defeat the course of justice. Both were found guilty on the count of attempting to pervert the course of justice. On the fraud counts, Mrs Huata was found guilty on five and Mr Huata guilty on four. Mrs Huata was acquitted on the other fraud count (which was laid only against her). They were subsequently sentenced to terms of imprisonment (in the case of Mr Huata with leave to apply for home detention).
[4]	Both now appeal against conviction and sentence although the sentence appeal was not pressed by Mrs Huata.

[5]	Mrs Huata was the settlor of the Foundation. As well, she gifted to the Foundation the reading programme we have mentioned. The Foundation received $840,000 in government funding associated with the provision of literacy services based on this programme. Mrs Huata was never a trustee of the Foundation. This would appear to have been for reasons associated with political sensitivities. Mr Huata only became a trustee late in the piece, after the fraud allegations against Mrs Huata first surfaced. So, at the time of the alleged frauds, neither was a trustee.
[6]	The affairs of the Foundation were not conducted with much formality. Meetings of the trustees were held irregularly, if at all. The business of the Foundation was largely conducted either at Mr Huata’s orchard business (Totally Hawkes Bay Ltd) or at the home of Mr and Mrs Huata. Cheques were customarily pre-signed in blank. Of the $840,000 in government funding paid to the Foundation, almost $170,000 was disbursed by way of cheques made payable to cash. The fraud charges which the appellants faced were associated with six of these cheques.
[7]	Mrs Kathleen Skipworth was the initial chair of the trustees and she also ran the day to day administration of the Foundation from the premises of Totally Hawkes Bay Ltd. Mrs Skipworth kept a cashbook. She left the Foundation in May 2002 and was subsequently prosecuted for the theft of forty pre-signed Foundation cheques which she completed to her own benefit, receiving goods or cash to a total of nearly $21,700. This offending occurred after May 2002, but it appears that she had begun defrauding the Foundation prior to her departure. In the course of the police investigations into her offending, she alleged that Mr and Mrs Huata had been using Foundation funds for their own purposes. One of the purposes alleged was a stomach stapling operation which Mrs Huata had paid for privately. Given Mrs Huata’s profile as a Member of Parliament and earlier publicity associated with her loss of weight (which had not been attributed to surgery), these allegations attracted a good deal of media interest.

[8]	The Crown alleged that on or about 4 November 1999 Mr and Mrs Huata used a National Bank cheque made out to cash for $6,110 fraudulently and with intent to obtain a pecuniary advantage for themselves. The cheque is in the handwriting of Mrs Huata other than in respect of the two signatures. It was cashed by Mrs Huata’s electoral agent, Mrs Patricia Kyle, at the National Bank at Hastings. She said that she was instructed by Mrs Huata, in the presence of Mr Huata, to cash the cheque and, with the cash, to buy a cash cheque to pay Woodford House for school fees owed by both Mr and Mrs Huata. On her evidence, Mrs Kyle complied broadly but not precisely with these instructions. Instead of cashing the cheque, she used it to pay for a bank cheque in the sum of $6,105 payable to Woodford House. This was paid to Woodford House and credited to the appellants’ account. The difference between the $6,110 Foundation cheque and the $6,105 bank cheque was absorbed by bank fees.
[9]	The Foundation cashbook maintained by Mrs Skipworth recorded the cheque as being payable to "Te Runanga O Ngai Tane", an organisation of which Mr Huata was a trustee. Produced as part of the reconstruction exercise was an invoice for $6,110 dated 30 October 1999 and addressed to the Foundation. It purports to be from Hira Huata (who is Mr Huata’s sister) and relates to "the hui on Te Reo Maori Reading Resources". At the bottom of the invoice is the notation in handwriting and signed by Hira Huata "Received from the Pipi Foundation, Kathy Skipworth of $6,110 cash". The Crown case was that the invoice was created in February 2003 on a computer associated with Mr and Mrs Huata.
[10]	The evidence of Mrs Kyle was that Mr Huata was present in the room when Mrs Huata gave her the Foundation cheque with the instructions to cash the cheque and to purchase with cash a bank cheque payable to Woodford House. On the same day Mrs Kyle was involved in other transactions of a broadly similar nature but involving a Te Runanga O Ngai Tane cheque. She said that she was given this cheque by Mr Huata, instructed to cash it and to use the cash to buy bank cheques to settle other educational liabilities, instructions she said that she carried out.
[11]	Mrs Huata’s explanation at trial was that Te Runanga O Ngai Tane Wänanga Consultants had provided services to the Foundation and were entitled to be paid, that this organisation owed money to Hira Huata and it was on Hira Huata’s instructions or with her authority that the cheque was used to fund the payment of the Woodford House school fees. Mrs Huata’s evidence was that it was most unlikely that she told Mrs Kyle to change the cheque into cash and then use cash to pay the school fees. Indeed she claimed that it was unlikely that there had been any direct dealing between her and Mrs Kyle that day. She was not specific, however, as to how the cheque came to be in Mrs Kyle’s possession and in her evidence speculated that it could have been given to her by either Mr Huata or Mrs Skipworth.
[12]	Mr Huata did not give evidence at trial. His defence in essence was that he was not involved with this transaction.

[13]	This count (laid only against Mrs Huata) alleged the use of a National Bank cheque dated 15 December 2000 payable to IHI Communications and Consultancy Limited for $24,680. This cheque, as with the first, was completed by Mrs Huata other than in relation to the signatures. On 15 December 2000 Mrs Huata was in Wakefield Hospital recovering from her stomach stapling surgery. On that day, this cheque was deposited by Mrs Huata’s daughter into the IHI bank account, an account which was controlled by Mrs Huata. The cheque, however, was dishonoured (because a payment from the Ministry of Education had been delayed) and it was never re-presented.
[14]	The original Foundation cashbook does not record the cheque although the dishonouring of the cheque was recorded in the receipts section. The reconstructed cashbook recorded this as a payment to "IHI Communications". On a computer received from Mr Huata, there was an electronic version of an invoice from IHI Communications and Consultancy purporting to be for $24,680 apparently issued on 5 December 2000. This document was created as part of the reconstruction exercise. No subsequent cheque corresponding to this cheque was ever issued. So if there was a genuine debt for $24,680 owed by the Foundation to IHI, it was not later discharged.
[15]	At the relevant time Mrs Huata had a liability of around $18,000 for hospital expenses associated with her surgery. The Crown case was that this cheque was drawn for the purpose of facilitating the meeting of that liability.
[16]	In her evidence, Mrs Huata said that the cheque had been written out in early December 2000 and that she had given it to her daughter to deposit. She also conceded that she had probably created the invoice much later, perhaps in 2003, although she maintained that IHI had performed work for which it was entitled to be paid. She said that she did not re-present the cheque as the Foundation had other and more pressing calls on its funds.

[19]	On 29 December 2000, Mrs Huata, using cash, purchased a $7,000 bank cheque at the Hastings branch of the BNZ which was made payable to Wakefield Hospital.
[20]	The original Foundation cashbook records the $30,946 cheque but does not describe what the payment was for. The reconstructed cashbook records the cheque as being payment for "Trustees’ Expenses". Enclosed with the reconstructed cashbook were five receipts and one invoice for a total of $39,000 (and not $30,946). On the Crown case these documents were false and designed to deceive.
[21]	In her evidence Mrs Huata denied telling Mrs Skipworth that the money was required for the stomach stapling operation and school fees. She said that she assumed that the cheque was legitimate when she filled in some of the details on it. She explained the receipts and invoices (totalling $39,000) were for more than had been paid because one was for work which had not then been performed. She claimed that she paid for the surgery from cash which she had managed to accumulate in small amounts by way of savings from her parliamentary salary and that the other payments were made from cash which her husband had put aside from his orchard business and had come from his safe.

[22]	On 6 July 2001 a Foundation cheque, payable to cash in the sum of $10,650, was cashed at the National Bank, Stortford Lodge. The handwriting on this cheque (other than the signatures) is of Mrs Huata. On the same day as this cheque was cashed there were two cash transactions totalling $7,000; (a) $3,500 paid to Iona College for school fees associated with one of the appellant’s daughters; (b) $3,500 in cash was paid to Woodford House for school fees in relation to another daughter.
[23]	The original Foundation cashbook records this cheque as "Rutherford PS resources". The reconstructed cashbook records it as "Maria – W K S P travel" and associated with this is a handwritten invoice/receipt which purports to be for travel and disbursements.
[24]	Mrs Huata’s evidence was that the cash for the payments she made came from Mr Huata.

[25]	On 3 December 2001 a Foundation cheque payable to cash in the sum of $7,923 was cashed by Mrs Skipworth at the Hastings branch of the National Bank. Mrs Skipworth said at trial that she gave the money to Mrs Huata
[26]	On 3 and 4 December 2001, (a) $3,000 was paid in cash to Iona College for school fees owed by the appellants, and (b) $3,400 in cash was paid to Woodford House for school fees owed by the appellants. The Foundation cashbook records the cheque as a payment for "trustees fees – contract work". The reconstructed cashbook records this as "Trustees Payments" which are particularised as being "wages" and "costs" for "Kathy".
[27]	Mrs Huata’s evidence was that the school fees were paid from cash which Mr Huata gave her.

[29]	In late 2002, the allegations made by Mrs Skipworth against Mr and Mrs Huata were taken up by the media.
[30]	Mr Huata became a trustee of the Foundation and was subsequently appointed as the chair of the trustees. There then followed the re-creation exercise involving minutes, invoices and other documents. Mrs Huata then instructed accountants, initially a Mr Skinner, and through him, a Mr Stevens, to provide a report as to the challenged expenditure. Mr Stevens was given explanations for the expenditure and documents which, at face value, supported those explanations. On 29 January 2003, he issued a preliminary report for Mrs Huata which in effect cleared her. Mrs Huata then provided a copy of that report to both her political party and the police. On the Crown case, the material which was constructed during this time, including false invoices, was intended to provide apparently innocent explanations to cover up the frauds committed by Mr and Mrs Huata.
[31]	The Crown case in relation to count seven also relied on the evidence of Mrs Kyle to the effect that on 21, 22 and 24 August 2003, Mrs Huata and Mr Huata were in contact with her and this culminated in a personal visit to her from Mrs Huata (who had been driven to see her by Mr Huata) at which she was asked to lie about the source of the money she had used to buy the bank cheque to pay Woodford House (associated with count one).
[32]	In her evidence, Mrs Huata agreed that some documents were re-created but simply to record what had truly happened. She admitted that she had had discussions with Mrs Kyle at the time alleged but denied that she had asked her to lie.

[34]	The trial was scheduled to start on 25 July 2005 with a time estimate of four weeks.
[35]	On 25 May 2005, Mrs Huata’s then counsel sought leave to withdraw and this was granted in early June. Legal aid would appear to have been applied for shortly afterwards and Mrs Huata instructed Mr Foley and a junior. There was some inconsistency between the relevant dates as indicated to us by Mr Bioletti and Mr Stanaway but there can be no doubt that Mr Foley and his junior were required to prepare for trial under time pressure – pressure which was exacerbated when major difficulties with the Legal Services Agency arose on 15 July. These difficulties were not resolved until 18 July.
[36]	On 18 July Mr Foley sought an adjournment of the trial. This application was declined by Judge Joyce QC who did, however, indicate that he was prepared to defer the start of the trial by one week, until 1 August. When the trial started on the morning of 1 August 2005, Mr Foley again applied unsuccessfully for an adjournment.
[37]	Mrs Huata, in an affidavit sworn in support of the appeal, contends that "the need to prepare the defence ran a poor second to the need to avoid losing the trial fixture".
[38]	This aspect of the case was presented with some brevity by counsel and there is, in truth, a limit to what could be usefully said. The case was reasonably simple. There were six counts of fraud involving, on the Crown case, similar behaviour and a closely interconnected charge of attempt to defeat the course of justice. Our impression overall is that Mrs Huata was competently represented. To establish that the refusal of the adjournment resulted in a miscarriage of justice, Mrs Huata has to show that the refusal prejudiced her in some way. Mr Bioletti sought to do so in two respects which also form the basis of the next two appeal points. It is therefore convenient to discuss those two appeal points before expressing a conclusion on the adjournment argument.

[41]	Mrs Skipworth’s evidence was that on that day she went into the National Bank at Hastings at around 9am (where she cashed the cheque) and then drove back to Bridge Pa where she saw the appellant travelling in the opposite direction, flagged her down and gave her the money. She says the appellant then travelled towards Hastings in her car.
[42]	Mr Bioletti took us through the banking transactions which occurred on this day and tied that evidence into the evidence which Mrs Huata gave at trial when she attempted to re-create her movements on 22 December. It is clear that her re-creation was, in some respects, incorrect in part because she did not have the 6.56am withdrawal as a reference point for her re-creation. As well that re-creation is not a good fit for the locations at which the different banking transactions occurred, see the discussion in [18] above. Indeed a similar comment could be made of the re-creation she has provided in her affidavit which would appear to have been prepared before much, if any, attention had been paid to the different bank branches which were used on 22 December and the time at which the BNZ transactions took place.
[43]	In context, however, the new evidence seems to us to immaterial. It is not necessarily the case that Mrs Huata made the withdrawal at 6.56am. And if she did, the associated timings are not inconsistent with the Crown case. Mr Bioletti said that the timing of the withdrawal raised the question why Mrs Huata would withdraw $500 in cash if she knew that she had more than $30,000 coming to her from Mrs Skipworth. But this question (or a related question why she would have withdrawn $500 if she had just received more than $30,000 in cash) arose on the material which was before the jury.

[46]	Mr Bioletti complained that the Judge in effect left it to the jury to speculate as to the changing of the notes in the absence of any evidence to suggest that this is what had happened. He also noted that the defence at trial did not make anything of this point; another consequence he said of the pressured circumstances in which preparation occurred.
[47]	The cheques payable to Woodford House and Iona College and the payment on the credit card account were all made with $100 notes. As well $800 of the $11,000 paid to obtain the $11,000 bank cheque involved the use of $100 notes. It is clear that on 22 December 2000 Mrs Huata had possession of a substantial number of $100 notes. Mrs Huata claimed that her cash transactions that day were funded from ATM withdrawals she had made over time and cash orchard sales made by her husband. This explanation did not, in itself, account for her possession of so many $100 notes (which are not dispensed by ATMs and are not the normal currency in which fruit purchases are made). At interview, Mrs Huata addressed this difficulty by saying that she had changed smaller denomination notes into $100 notes for ease of storage. It would not be difficult to treat this explanation as being material (albeit in inverted form) to the possibility that Mrs Huata had changed some $100 notes which, on the Crown case she received from Mrs Skipworth, into different denominations.
[48]	There is also a broader context to be considered. Mrs Skipworth’s evidence was a good fit for cash payments which Mrs Huata made around the time the cheque was presented. Although pressed on this point in cross-examination, Mrs Huata was not able to give a complete explanation of how Mrs Skipworth could have known that Mrs Huata had been involved in so many substantial cash transactions associated with her surgery and school fees just after the Foundation cheque was cashed. There was no evidence of other use to which that money was put. In addition there was a more general pattern of cash payments following the cashing of Foundation cheques as our analysis of the counts indicates. Finally, the course of conduct described by Mrs Skipworth was very similar to the conduct described by Mrs Kyle.
[49]	In context we think that it was open to the jury to infer that the source of the cash used to obtain the $11,000 bank cheque was the Foundation cheque.

[50]	As to the timing of the $500 withdrawal, we refer to what we have said in [43] above. On the note denomination issue, we have held that it was open to the jury to infer that Mrs Huata had changed notes given to her by Mrs Skipworth. So neither ground provides in itself the basis for us allowing the appeal. In issue in relation to the challenge to the refusal of the adjournment is the slightly different question whether the failure by the defence to raise these issues at trial (which Mr Bioletti attributes to the pressured circumstances in which the defence case was prepared) resulted in a miscarriage of justice.
[51]	At trial the hard facts of location, timing and detail (ie the denomination of notes used) in relation to the banking transactions on 22 and 29 December were not the subject of detailed analysis. With Mr Bioletti’s assistance at the hearing of the appeal, we were able to extract from the exhibits the detail set out in [18] and [19] above as well as to identify the time at which the $500 was withdrawn. If there had been the same sort of detailed analysis at trial, Mrs Huata’s reconstruction in evidence of the key events would no doubt have been different. But Mr Bioletti was not able to persuade us that this would have been of real assistance to Mrs Huata. We see nothing relevant in the timing of the $500 withdrawal. Further, her possession on 22 December of so many $100 notes might be thought to have provided some support for Mrs Skipworth’s evidence. So at best for the defence, the note denomination issue was two-edged. As well, three different bank branches were used on 22 December and a fourth on 29 December. On 22 December, the cheque for $30,946 was cashed at the Queen St, Hastings branch of the National Bank, the $11,000 bank cheque was purchased at the Stortford Lodge branch of the National Bank and the three transactions involving the payment against the credit card liability and the purchase of the two cheques used to pay school fees took place at the Havelock North branch of the BNZ. On 29 December 2000, a fourth branch (the Hastings branch of the BNZ) was used to acquire the bank cheque for $7,000. A possible explanation for this pattern of events is that Mrs Huata was seeking to limit the attention which her cash transactions might have attracted had they all occurred at the same time and at the same bank branch. In this context, we think that a detailed exploration of all of this at trial would have been to Mrs Huata’s disadvantage.
[52]	Accordingly see no material prejudice to Mrs Huata in relation to the two points argued by Mr Bioletti associated with the refusal of the adjournment and thus no associated miscarriage of justice.

[53]	Mr Bioletti also maintained there had been a misdirection as to count three.
[54]	The use of the document relied on by the Crown was the cashing of the cheque, an act which was physically carried out by Mrs Skipworth. In [39] of the summing up the Judge noted that "use by an agent acting on the instructions of an accused is use by that accused".
[55]	In his submission Mr Bioletti argued:

[56]	In the course of the argument, Mr Bioletti to some extent moved away from this submission and instead developed the perhaps inconsistent contention that Mrs Skipworth, as a trustee of the Foundation, was a victim and that, for this reason, her cashing of the cheque could not form the actus reus of an offence by Mrs Huata.
[57]	This latter submission invoked an argument which was successful in R v Thompson CA404/04 27 April 2005. But the key to that decision was that the victim’s actions were not carried out as the agent of the appellant (see [18]). Mrs Skipworth was not, in a conventional sense, the victim of the fraud (as the money which was misappropriated did not belong to her). Further, on the evidence which the jury must have accepted, Mrs Skipworth’s cashing of the cheque was on the direct instructions of Mrs Huata. Mrs Skipworth was thus, for the purposes of the criminal law, acting as Mrs Huata’s agent. It would be entirely unreal not to recognise the presentation of the cheque as being a use of it by Mrs Huata.
[58]	We add that, as Mr Bioletti’s written submission recognised, there was another sense in which Mrs Skipworth was not a victim. On her evidence she knew that the cheque was being cashed to provide funds to meet personal debts of Mrs Huata. It is difficult to see how she could not have recognised that this was a fraud. We agree that the expression "innocent agent" is often used where the actus reus of a crime has been performed by a third party on the instructions of the accused, see for instance R v Paterson [1976] 2 NZLR 394 (CA) and R v Fowlds CA222/00 13 December 2000. But there is no credible basis upon which criminal liability of the primary offender (ie the person who commissioned the offence) can depend on the innocence of the agent. If the agent is innocent, the primary offender is guilty as a principal offender. If the agent is not innocent, then the primary offender will likewise be guilty, at least as a party.

[61]	The case against Mr Huata was strongest as to count one. On the evidence of Mrs Kyle, the appellant was present when Mrs Huata gave her a Foundation cheque and the instructions as to what to do with it. On the Crown evidence, he must have known that the use of a cheque in such circumstances was illegitimate, a point emphasised by the odd instructions about cashing the cheque and purchasing a bank cheque for cash. The Crown case as to all of this was strengthened by Mrs Kyle’s evidence that broadly similar transactions occurred the same day in relation to other school fees in respect of which Mr Huata was plainly the prime mover.
[62]	On the other counts, the Crown relied primarily on what could be inferred from the joint arrangements made by Mr and Mrs Huata as to their joint liabilities, their close working relationship and his involvement in the reconstruction exercise. We might add that there is no evidence of overpayments, that is both Mr and Mrs Huata each independently paying the same bill. This suggests co-ordination as to how their liabilities were met.
[63]	All in all we are satisfied that there was an appropriate evidential basis for the jury’s verdicts.

[64]	We think that the evidence on this count was more than adequate to warrant conviction, particularly given the jury’s verdicts on the fraud counts. Given those verdicts, the only inference which could sensibly be drawn from the creation of false documents associated with the underlying transactions was an intent to defeat the course of justice.
[65]	Unsurprisingly this point was not much pressed by Mr Patel.

[67]	Mr Patel noted the assertions made by Mrs Skipworth as to instructions to keep the ledger book and bank statements away from Mr Huata and claimed that this would have provided material upon which Mrs Skipworth could have been cross-examined to Mr Huata’s advantage.
[68]	The co-conspirators’ rule was not invoked in this case and, leaving it aside, what Mrs Huata said to Mrs Skipworth was not evidence in relation to Mr Huata. So technically, there might have been an issue whether Mr Huata’s counsel could have cross-examined Mrs Skipworth on what Mrs Huata had told her. We accept that so technical an approach would almost certainly not have been insisted on by either the trial Judge or the prosecutor but the corollary of this is that if counsel for Mr Huata had sought to cross-examine Mrs Skipworth on the proposition that Mrs Huata had instructed her to keep documents and information associated with the Foundation away from Mr Huata, he would have been required to allow Mrs Skipworth to place in context any acceptance of that proposition.
[69]	The transcript of Mrs Skipworth’s interview by the Serious Fraud Office suggests that the reason why Mrs Huata wanted to keep information about the financial affairs of the Foundation way from Mr Huata was because he had been pressuring her to be paid money from the Foundation:

[72]	When the trial Judge sentenced Mr Huata, he noted that he was, in relation to the fraud counts, the minor offender. On those counts he was sentenced to a total of twelve months imprisonment. On count seven he was sentenced to a cumulative term of imprisonment of twelve months. So the total term of imprisonment imposed was two years. The Judged granted him leave to apply for home detention and deferred the commencement of his sentence for two months until the date on which the Parole Board determined his application for home detention.
[73]	As it turned out, the home detention application was unsuccessful and Mr Huata was taken into custody on 15 October 2005. He was subsequently granted bail by this Court.
[74]	The only issue taken with sentence by Mr Patel relates to whether the overall sentence outweighed the totality of the criminality. He suggested the genesis of the attempting to pervert the course of justice charge arose out of an attempt to deflect the media interest in the matter and maintained that a total sentence of 18 months imprisonment might have been appropriate.
[75]	We see nothing in the sentence appeal. The frauds involved not insubstantial amounts of money and a gross breach of trust. The attempt to defeat the course of justice involved a sustained exercise in dishonesty. The sentence imposed by the Judge strikes us as being very moderate.