The Queen v Rai [2009] NZCA 32 (25 February 2009)

Court of Appeal of New Zealand

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The Queen v Rai [2009] NZCA 32 (25 February 2009)

Last Updated: 4 March 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA524/2007

[2009] NZCA 32

THE QUEEN

v

NEESIYANT KRIS RAI

Hearing: 18 February 2009

Court: Ellen France, Harrison and Cooper JJ

Counsel: Appellant in Person
M T Davies for Crown

Judgment: 25 February 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

[1] The appellant appeals against his conviction, after trial by jury, on four counts laid under s 223 of the Crimes Act alleging theft by a person in a special relationship.
[2] The counts alleged that he had varying amounts of money in his control in circumstances that he knew required him to deal with the money in accordance with the requirements of his employer but that he intentionally dealt with it otherwise than in accordance with those requirements.
[3] It was the Crown’s case that between 18 May 2004 and 25 January 2006 the appellant was employed to run the business accounts of two firms owned by the complainant. One of the companies dealt in the design and manufacture of garments, and the other managed apartments. The appellant’s duties included managing the company accounts using MYOB software and he was also responsible for banking money received in payment of debts due to the companies.
[4] The Crown alleged that on 23 January 2006 the complainant noticed that the appellant had not banked certain cash payments. She confronted the appellant and a subsequent investigation revealed that various amounts had not been banked by him. On Thursday 26 January he went to the complainant’s home when, according to the complainant, he handed over $925.50, saying it was money that he owed her. The appellant gave details as to the source of the funds which went to make up the $925.50, which enabled the complainant to track the amounts to particular transactions in the company records.
[5] The defence proffered at the trial was that the complainant had told the appellant not to bank the funds because she wanted to use the money for her own purposes. That defence was fairly put to the jury in Judge McElrea’s summing up, and was plainly rejected.

The appeal

[6] The appellant now contends that his conviction should be set aside, effectively on the basis that the jury’s verdict could not be supported on the evidence. He claims that his bank statements, not produced in the District Court, would show that at all relevant times he had sufficient funds to support himself and his family’s needs without resort to theft. He also claims that accounting evidence called at the trial which referred to his management of the MYOB accounts as unorthodox was incorrect. He sought to demonstrate the latter point by reference to an extract from MYOB explanatory materials headed Preparing a Bank Deposit. That information had also not been produced in the District Court.
[7] We explained to the appellant that we were not in a position to take into account documents that had not been produced in evidence in the District Court in the absence of any satisfactory explanation as to why they had not then been produced. There was no suggestion that the documents were unavailable at that time. Mr Rai responded by referring to legal advice he had received that he had been under no obligation to prove his defence. That advice was, of course, correct. However, if he had wished to rely on the material for the purpose of challenging aspects of the Crown case, it would have been necessary for him to produce them when he gave evidence.
[8] The appellant said that he wished to examine the complainant’s own financial records. He sought a direction that he be allowed access “to the respondent’s filing system to take evidence that clearly supports the fact that the respondent had a habit of taking money for personal use and she was facing personal hardship and not me”. However, there had been no attempt to obtain such material prior to the trial, which proceeded over a year after the first call of the matter in the District Court. Assuming we had power to do so (the point was not argued), there is no basis upon which we could now properly make such a direction at this late stage.
[9] Mr Rai gave evidence at the trial. He stated that on occasions he had instructions from the complainant not to bank cash that was received, or to put it in the drawings account, or to record it as “undeposited funds”. In respect of the particular events which were the subject of the individual charges his evidence was that the money had not been banked on the complainant’s instructions and that she had retained the money for her own personal use. The complainant however maintained that she had given no such instructions. The question which the jury had to resolve was whether they accepted his evidence or preferred that of the complainant.
[10] The issue was squarely put before the jury by Judge McElrea who, in summing up, said:

[T]he defence position ... is that it was not banked, that is admitted, but the reason given is that Theresa Angliss [the complainant] according to the accused, told him not to bank it and that was because she wanted the cash for herself.

[11] There was plainly ample evidence at the trial which justified the jury in coming to the conclusion which it did. The complainant gave evidence that:

He came in, I invited him in and he handed me this huge wad of cash from his trouser pocket and I said what’s this and he said the money I owe you and I said do you mean the money that you stole and he said no, the money I owe you and he handed me this wad of cash...

Just talking about this amount of cash that he gave you, did you have any further discussion with him about that amount of cash? ... Yes I counted it up and it was $925 and a few cents and then he dictated from his cell phone, I said what are these amounts from and he dictated from his cell phone oh this amount is from Bernie McCarthy and this, another cash amount, was from another client and another cash amount was from this client and that if I got someone to show me in MYOB that it all would be revealed under undeposited funds in the company files.

And also that:

[I]f we received cheques, which most of the payments were, or credit cards, he would be responsible for banking them, and that applied to cash transactions as well ... .

[12] Asked whether there was a policy as to when banking should take place, she said:

Daily. Or as and when the funds came in, but normally daily.

[13] There was a concerted effort to move her from this position in cross-examination by the appellant’s counsel, but it was to no avail. At one stage she said:

...I can only repeat what I’ve been saying for the last half hour, that it was a matter of course that cash or cheques came in it was [the appellant’s] job description to bank it that whether or not I was present or not and it was his job description to bank the funds as and when they appeared ...

[14] Given this evidence there can be no room for an argument that the jury’s verdict was unreasonable, or unable to be supported.
[15] Except in one respect, the appellant did not seek to criticise the summing up. The exception concerned a passage in which the Judge said:

There was reference to the time frame here and I just want to suggest to you that the fact that the complainant was not interviewed by the police until July although her complaint was laid, apparently, on 7 February, is not something you can hold against her. The police have all sort of responsibilities, they cannot attend to everything as soon as it comes in, and the fact that they did not get back to her until July for an interview is not something that you should allow to influence your view of her position.

[16] Mr Rai submitted that this observation of the Judge would have been very influential with the jury and would have caused them to reject the contention, evidently mounted by the defence, that a late complaint by her should tell against her credibility.
[17] There was a memorandum of admitted facts pursuant to s 369 of the Crimes Act which counsel signed on behalf of the appellant for the purposes of the trial. Amongst other things, that memorandum recorded that the complainant attended at the Auckland Central Police Station on 7 February 2006 to make her complaint against the appellant. In this Court, Mr Rai sought to contend that the delay between 25 January when he and the complainant had their final meeting and 7 February was of itself significant. We are unclear as to whether or not the defence advanced a contention along these lines at the trial. If so, the jury had all the relevant facts to consider it. Plainly, however, Judge McElrea’s observation was not directed at that submission, even if it was made. Rather, he was referring to delays between the making of her complaint on 7 February and the date in July when she was interviewed by the police. It was clearly an appropriate direction.
[18] No other argument was addressed to us based on the summing up.

Result

[19] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington