Burchell v R [2010] NZCA 252 (16 June 2010)

Last Updated: 23 June 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA6/2008CA808/2008

[2010] NZCA 252

BETWEEN LLEWELLYN WILLIAM BURCHELL
Appellant

AND THE QUEEN
Respondent

Hearing: 11 March 2010

Court: Ellen France, Miller and Allan JJ

Counsel: Appellant in person
J M Jelas for Respondent

Judgment: 16 June 2010 at 2.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to file the conviction appeal in CA6/2008 is granted but the appeals against conviction and sentence are dismissed.
2. The appeal against conviction in CA808/2008 is dismissed.
   

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No.

Introduction [1]
Background [4]
CA6/2008 – the charges [4]
CA808/2008 – the charges [8]
The activities relating to Hotel Holidays and Thee Agent – CA6/2008 [11]
The evidence at trial [12]
The basis of the conviction appeal [22]
Discussion [23]
Sentence appeal – CA6/2008 [31]
The Judge’s approach [31]
The basis of the sentence appeal [33]
Discussion [35]
Obtaining credit from Senate Finance and activities relating to Hotels
International – CA808/2008 [42]
The grounds of appeal [42]
Discussion [45]
Procedural issues [61]
Name suppression [62]
Request to appoint an amicus [66]
Disposition [78]

Introduction

[1] These two appeals relate to convictions under the Insolvency Act 1967. They involve charges that Mr Burchell carried on activities he was prohibited from undertaking whilst an undischarged bankrupt.
[2] The issues on the appeal numbered CA6/2008 focus on the sufficiency of the evidence about Mr Burchell’s activities and his understanding of his duties as a bankrupt. Mr Burchell also says the sentence of nine months imprisonment imposed in relation to these charges is manifestly excessive. In terms of CA808/2008, the key issues relate to what Mr Burchell knew about his status at the relevant time and the nature of Mr Burchell’s role in relation to a business in which he was involved.
[3] We deal with the two appeals together because there is some overlap between the cases and there are procedural issues common to both.

Background

CA6/2008 – the charges

[4] The charges in CA6/2008 arose out of Mr Burchell’s activities in relation to a company called Hotel Holidays Ltd (Hotel Holidays) and another property-related enterprise known as Thee Agent.
[5] Mr Burchell was convicted after trial in the High Court on two charges under s 128A(1)(b) of the Insolvency Act. The charges relate to breaches of s 62 of the Act, that is, carrying on a business while an undischarged bankrupt without the consent of the Official Assignee.
[6] The incidents giving rise to these charges are set out in the sentencing remarks of Courtney J, who was the trial Judge.[1] Courtney J explained:

[2] The charges relate to two businesses that you continued to run after your bankruptcy in July 2004. The first was a home stay business [Hotel Holidays] under which you solicited people to act as local hosts for overseas visitors for home stays. People paid you to join or register as hosts. However, they never received any guests or made any money. The exact amount of the money that was lost by people wanting to become hosts in this business is uncertain. As a result of evidence given by one of your host managers at the trial the Crown estimates that the losses may be in the region of $90,000 to $100,000. I note that you dispute that fact. However, it is clear that money was solicited from people and was lost and even if the amount was half of what the Crown estimated it would be still a substantial loss to those people.

[3] The second business was one that was run as an unincorporated entity, a property investment scheme under which you sought to pool investors’ money to buy investment properties [Thee Agent]. However, no property was ever purchased and as a result of you carrying on that business after you were bankrupted at least one person lost what was for him a substantial amount of money.

[7] Courtney J sentenced Mr Burchell to a term of nine months imprisonment in relation to the first count (Hotel Holidays) and to a concurrent term of three months imprisonment on the second count (Thee Agent). As we have foreshadowed, Mr Burchell appeals against conviction and sentence.

CA808/2008 – the charges

[8] Mr Burchell was convicted after a trial before a Judge alone in September 2008 on two counts under the Insolvency Act.[2] He had initially been charged with three counts, all of which were brought against Mr Burchell summarily. Mr Burchell elected trial by jury. Having done that, after depositions and committal for trial, Mr Burchell sought leave for trial by Judge alone. That was granted and the matter proceeded to trial before Judge Gittos over three days from 17 September 2008. Mr Burchell was discharged under s 347 of the Crimes Act 1961 in relation to the first of the counts under s 128(1)(g)(i). That was because the evidence offered by the Crown related to transactions on dates which were different from the date of the offence alleged in that charge.
[9] The two counts which proceeded to trial were described in the written submissions of Ms Jelas for the Crown as follows:

(a) Obtaining credit over $100 from Senate Finance Limited [Senate], without proving, before obtaining credit in excess of $100, that he informed Senate ... that he was an un-discharged bankrupt, contrary to s 128(1)(g)(i) of the Insolvency Act 1967.

(b) Failing without reasonable cause to comply with s 62 of the Insolvency Act ..., namely that he, while an un-discharged bankrupt, entered into, carried on, or took part in the management or control of a business known as Hotels International [Ltd] [Hotels International] without the consent of the Official Assignee or the Court contrary to s 128A(1)(b) of the Insolvency Act ... .

[10] Mr Burchell was ordered to come up for sentence if called upon within 12 months on these counts.[3] He appeals his conviction on these two charges.

The activities relating to Hotel Holidays and Thee Agent – CA6/2008

[11] Section 128A(1)(b) makes it an offence for a bankrupt to fail without reasonable cause to comply with s 62 of the Insolvency Act. Section 62, in turn, provides that an undischarged bankrupt “must not, without the consent of the [Official] Assignee” directly or indirectly:

(a) enter into, carry on, or take part in the management or control of, any business:

(b) be employed by a relative ... or by any company ... that is managed or controlled by a relative of the bankrupt.

The evidence at trial

[12] The Crown case was that Mr Burchell was running both of the businesses although he was well aware of the need for consent from the Official Assignee. That was because the Official Assignee had informed Mr Burchell on a number of occasions after he was adjudicated bankrupt that consent was required to undertake these activities.
[13] In terms of Mr Burchell’s knowledge of the need to get consent and his failure to do so, the relevant evidence came from the Official Assignee managing the Insolvency Office’s Northern Region, David Harte, and from two insolvency officers, Peter Seufatu and Christoffel Viljoen, all of whom met with Mr Burchell at various points after he was adjudicated bankrupt.
[14] For example, Mr Seufatu spoke of a meeting with Mr Burchell on 27 July 2004 where he said he discussed with Mr Burchell his various duties as a bankrupt. He said he discussed the following:

... if he is going to raise over $100 in credit he must advise the person that he is bankrupt or the business that he is bankrupt. If he is going to be employed by a relative he must get the Official Assignee’s consent. If he is going to be self-employed he must get the Official Assignee’s consent. If he is going to be employed by a relative’s company or trust he must get the Official Assignee’s consent. If he’s going to manage the business he must get the Official Assignee’s consent.

[15] Mr Seufatu said that at a later meeting on 10 August 2004, he went through a pamphlet with Mr Burchell and used that to explain to Mr Burchell that to get consent he would need to provide a letter of application. The application needed to be supported by an affidavit and letters from Mrs Burchell explaining what his duties were, Mrs Burchell being director of the company.
[16] The Crown also called evidence about Mr Burchell’s role in relation to Hotel Holidays and Thee Agent.
[17] In terms of Hotel Holidays, the evidence was that when an individual signed up with the company, for example as a Host Manager, it was Mr Burchell who made all of the necessary arrangements and undertook the necessary training. Mr Johan Van As, for example, took up the role of Host Manager. He described Mr Burchell as “the mind behind the whole concept”, the “boss” and “where the buck stops”.
[18] The evidence about Mr Burchell’s role with respect to Thee Agent came primarily from David Maritz. Mr Maritz described several meetings with Mr Burchell where Mr Burchell explained the scheme to him. He said another man, Tony Parker, had some involvement as well but that Mr Burchell took the lead role. All of Mr Maritz’s subsequent discussions about getting back the money he had paid to invest in the enterprise involved Mr Burchell.
[19] Mr Burchell gave evidence at trial. His primary defence in relation to Hotel Holidays was that he was told by the officers of the Official Assignee that if Mrs Burchell became a director and if he provided a letter from Mrs Burchell about his duties in the company, that would be the necessary approval. He provided a letter and so from his perspective he had obtained consent.
[20] Mr Burchell also denied telling others he owned Hotel Holidays and said he did not think he was running the company.
[21] In terms of Thee Agent, Mr Burchell’s defence was essentially that he was not carrying on that business at all. Hence, he said he was surprised Mr Maritz paid money into the Thee Agent account. Mr Burchell put it this way when asked in evidence in chief about discussions with Mr Maritz in August 2004:

I had a phone call from Mr Maritz confirming that he paid money into the account. It certainly took me by surprise. I thought that he was approached by one of the managers to participate with Hotel Holidays and I acknowledged that he paid the money in. Then shortly after that he came to me and he was talking about a property and in my mind he was buying Hotel Holidays ... and I realised that in his mind he wanted to participate in property.

The basis of the conviction appeal

[22] Mr Burchell’s conviction appeal is based on his lack of knowledge of his bankruptcy, the insufficiency of evidence as to his role in either business and the effect of his communication with the Official Assignee about Hotel Holidays.

Discussion

[23] These charges were brought on indictment. In this case then, to prove the two charges against Mr Burchell, the Crown had to prove that Mr Burchell, while an undischarged bankrupt, entered into, carried on or took part in the management or control of the businesses without the consent of the Official Assignee and without any reasonable cause for doing so. For both businesses, the relevant period was 1 July 2004 to 31 January 2005.
[24] In terms of the argument Mr Burchell makes about his lack of knowledge of bankruptcy, proof of bankruptcy is sufficient unless Mr Burchell had put in issue a reasonable cause which the Crown must then disprove.[4]
[25] In this respect, at trial, Mr Burchell disputed two matters. The first matter was the basis on which he was adjudicated bankrupt. Secondly, he did not accept that he had been provided with a copy of the order of adjudication.
[26] As to the former aspect, Mr Burchell said Baycorp had made an error in seeking the order against him. It seems Mr Burchell considered Baycorp did not carry out what he had asked them to do. Mr Burchell also said that the disputed debt was very small (he thought it was in the region of $1,200 – $1,500).[5] In other words, Mr Burchell put in issue the fairness of the bankruptcy order. But that could not amount to reasonable cause.
[27] As to the latter aspect (knowledge of the order of adjudication), as we read the evidence this was not advanced at trial as a reasonable cause. Courtney J in summing up recorded that Mr Burchell accepted he was bankrupt at the relevant time and he did not dispute that, at least after the first meeting with Mr Seufatu in July 2004, he knew he was bankrupt.
[28] The evidence of Mr Burchell’s complaint about the bankruptcy was rather directed to to his claim he thought all he had to do was send in a letter from his wife. The evidence was relevant to this claim. That is because Mr Burchell’s evidence, supported by that of the insolvency officers, was that he was very upset about the bankruptcy and the meetings at the Official Assignee’s office were somewhat fraught as a result. An implication of this was that it may have coloured what it was reasonable for Mr Burchell to have taken from his meetings with the Official Assignee’s office. There was, however, evidence Mr Burchell was told of the requirements for obtaining the Official Assignee’s consent, which included the need to file an affidavit. There was also evidence he was told that he did not have consent. The jury did not have to accept the alternative explanation from Mr Burchell.
[29] As to Mr Burchell’s role in relation to Hotel Holidays and Thee Agent, the jury, if it accepted the evidence from the Crown witnesses, was entitled to conclude he ran both businesses after his bankruptcy. The matters raised by Mr Burchell on appeal in terms of his role and his interactions with the office of the Official Assignee were put before the jury and involved matters of fact for the jury to determine. These factual matters largely turned on the credibility of the witnesses. There was a sufficient basis on which the jury could be satisfied beyond reasonable doubt.
[30] For these reasons, we would dismiss the conviction appeal.

Sentence appeal – CA6/2008

The Judge’s approach

[31] In sentencing Mr Burchell, Courtney J said that Mr Burchell, “knew perfectly well” the nature of his obligations and that he did not have consent.[6] The Judge also said she was satisfied Mr Burchell was running the two businesses. The position was, Her Honour concluded, that he chose to continue doing so “over many months” despite “constant advice ... by the Official Assignee” that consent was necessary and when all that was required was to provide an affidavit.[7]
[32] In concluding a nine month term of imprisonment was appropriate (the maximum term is two years for conviction on indictment), Courtney J emphasised the protective nature of the legislation and the resultant need for deterrence. The Judge said the losses incurred were “not readily calculable” but that even if they were less than half of the Crown’s estimate, people who had worked hard for their money had lost it.[8]

The basis of the sentence appeal

[33] Mr Burchell makes two points in support of his appeal against sentence. The first is that the amount of money involved had not been established. Some money had been paid back to Mr Maritz.
[34] Mr Burchell’s second point is that it was not his fault people had lost their money. Rather, he said the difficulties arose because the police had closed down his business and so it was unable to continue.

Discussion

[35] As to the first point, it is correct that Mr Maritz received some of his money back ($1,000) although the Judge said she did not recall that evidence. However, over $3,000 remained outstanding. Further, the Judge made it clear the amounts involved were not the critical feature in sentencing. That reflected the evidence at trial, where the actual amounts involved were not at the forefront of the case. In part, this was because accurate records were not kept. In addition, the fees paid seemed to vary considerably.
[36] Three of the Crown’s witnesses gave evidence of having become involved as Host Managers. One of these paid a fee of $3,000 (although she received $1,600 by way of fees from those interested in providing homestays). The second witness made a part payment of $300 and the third witness a part payment of $500. The third of these witnesses, Mr Van As, also gave evidence that members of the public who responded to the publicity campaign and were interested in joining the business had to pay a $1,000 fee. He could remember signing up 28 members who paid (full and part payments) to Mr Burchell totalling $12,800. He was aware of five or six other host managers, in addition to two other men who were also recruiting members.
[37] What was plain was that a considerable number of people had paid money to Mr Burchell who collected that money in the very type of situation s 62 of the Insolvency Act was intended to prevent occurring.
[38] As to Mr Burchell’s second point, the reality was that people did lose money having invested in a business being run by Mr Burchell. He had responsibility for that. We add that the point now raised about the effect on the business of police involvement did not appear to have been a particular focus before the Judge at sentencing. (Mr Burchell was represented by counsel at that stage.)
[39] In any event, the sentence imposed, while stern, was within the available range. As Ms Jelas submits, there were aggravating factors, in particular, Mr Burchell’s blatant disregard for the conditions of his bankruptcy, the fact individuals lost money, and the level of planning involved. On the latter point, Ms Jelas notes that the Holiday Homes business involved Mr Burchell placing advertisements in local newspapers, moving around New Zealand talking to prospective investors and setting up a business centre.
[40] The Judge in sentencing relied on R v Holt.[9] While there is no tariff for this offending, Courtney J’s approach is consistent with that taken in Holt. This Court in Holt upheld an effective sentence of nine months imprisonment on two counts under s 128A of the Insolvency Act for similar offending. Both counts featured ongoing activity in the face of warnings from the Official Assignee.
[41] For these reasons, we dismiss the sentence appeal. Mr Burchell has served his sentence so no further order is required in that respect.

Obtaining credit from Senate Finance and activities relating to Hotels International – CA808/2008

The grounds of appeal

[42] In terms of the count relating to Senate, s 128(1)(g)(i) of the Insolvency Act provides that it is an offence for an undischarged bankrupt to obtain credit of $100 or more, unless the bankrupt proves that “before obtaining credit to that extent, he informed the person giving the credit that he was an undischarged bankrupt”.
[43] In relation to this charge, Mr Burchell says he did not know he was bankrupt at the time. He did not attend the defended hearing on 29 June 2004 at which he was made bankrupt and he says the Court staff did not notify him as directed to do by Associate Judge Lang. Finally, Mr Burchell says that his involvement with the Official Assignee’s office post-dated the 19 July 2004 transaction with Senate.
[44] The charge concerning Hotels International is brought under s 128A(1)(b) of the Insolvency Act, the elements of which have been discussed above. Mr Burchell submits that there was insufficient evidence to prove the charge. He also questions the use of what he describes as “entrapment” on the part of one of the Crown witnesses, Petrus Visser.

Discussion

[45] We deal first with the charge relating to obtaining credit from Senate. We record for completeness that Judge Gittos concluded he was satisfied beyond reasonable doubt that Mr Burchell entered into the loan transaction with Senate and thereby incurred credit. No issue is taken with this aspect.
[46] Judge Gittos rejected the Crown submission that the offence was one of strict liability. The Judge considered that would be inconsistent with the defence in s 128(1)(g)(i). To utilise the defence, the defendant would need to know he or she was an undischarged bankrupt. Judge Gittos concluded the Crown had to prove that Mr Burchell was aware of his bankruptcy at the time credit was obtained.
[47] We should not be taken as necessarily agreeing with the Judge on this point. It seems more likely that this is a strict liability offence (public welfare).[10] On a strict liability approach, Mr Burchell would have had to show that he was not at fault in not knowing about his bankruptcy. However, we did not hear argument on this matter and so we do not decide it. In these circumstances and, as the Judge’s approach was more favourable to Mr Burchell, we deal with the matter on the same basis as the Judge.
[48] The question addressed by Judge Gittos and the question Mr Burchell raised on appeal in relation to this charge was whether the Crown had proved that at the time he entered into the transaction with Senate on 19 July 2004, Mr Burchell was aware that he had been adjudicated bankrupt on 29 June 2004.
[49] The competing cases are helpfully summarised by Judge Gittos. The Judge recorded the following matters which had been emphasised by defence counsel in relation to this aspect:[11]

1. The fact that the judgment of [Associate Judge Lang] on its face records that [Mr Burchell] was not present in Court when the order of adjudication was made.
2. The Judge was at pains to direct the judgment creditor should take steps to bring the adjudication to [Mr Burchell’s] notice.
3. There is a relatively short timeframe between the adjudication and the transaction on 19 July with Senate ... from which he suggests the Court should infer a lack of knowledge.
4. That Mr Harte, the Official Assignee, was unable in his evidence to be specific as to the date upon which public notice of [Mr Burchell’s] bankruptcy was published.

[50] On the other hand, Judge Gittos recorded the Crown submissions that:[12]

1. ... in his judgment [Associate Judge Lang] makes it clear that he was satisfied that [Mr Burchell] was aware that the adjudication was to proceed as a defended matter that day.
2. ... Mr Harte, the Official Assignee, was able to say that details of adjudications are routinely published in the newspaper by the Official Assignee’s office within a couple of days of adjudication, and that such a notice was in fact published in respect to [Mr Burchell]. Mr Harte having had occasion to personally verify that fact in respect to a previous enquiry concerning [Mr Burchell], although he was unable to be specific as to the date of publication or to produce the notice.
3. ... a letter was sent by the Official Assignee on 9 July 2004 to [Mr Burchell] at his notified address ... (the same address given by him in respect to the hire purchase transaction), which letter expressly notified him as to the adjudication, and had enclosed with it a formal Notice to Bankrupt and brochure informing him as to the effects of adjudication.
4. ... [Mr Burchell] arrived unbidden at the Official Assignee’s office on 27 July and spoke with a senior staff member, Peter Seufatu who said in evidence that [Mr Burchell] was aware of his adjudication and apparently angry that the order of adjudication had in fact been made.

[51] On the whole of the evidence, the Judge was satisfied that when Mr Burchell entered into the hire purchase transaction with Senate on 19 July he was in fact aware he had been adjudicated bankrupt. We agree. Mr Burchell was aware the bankruptcy proceedings were to go ahead on 29 June 2004. A letter was sent to him at his last notified address. Something prompted him to arrive unannounced at the office of the Official Assignee on 27 July. In addition to the matters referred to by the Judge, we note that Mr Burchell had a letter from the Companies Office sent to another company which said he had been made bankrupt. Mr Burchell brought that letter with him when he arrived at the office of the Official Assignee on 27 July. He was upset because the letter was dated 22 June, ie prior to the Judge’s order adjudicating him bankrupt.[13] It was an available inference from this evidence that Mr Burchell was aware by 19 July that he had been made bankrupt.
[52] As to the second count relating to Hotels International, the Judge noted it was common ground that Mr Burchell had been asked by Vili Lisipeki for help in the development of a business opportunity conceived by Mr Lisipeki. The business concerned soliciting custom for hotels and motels on a commission basis by placing advertising brochures for such hotels in shopping malls. Mr Lisipeki said he was an employee of a tyre retailing business and still employed on a full-time basis. He did not have the time nor the business skills to investigate the feasibility of his idea and to set up a company to undertake it if appropriate. He asked Mr Burchell to help him establish a company and to investigate the feasibility of the idea from a commercial perspective. As the Judge recorded it was also common ground that Mr Burchell prepared the papers necessary to obtain the registration of the company known as Hotels International. Mr Lisipeki was the sole director and shareholder.
[53] The Judge heard evidence from Gwyneth McDougal, who was the credit manager for Fairfax Media Group. She said that in August 2006 Fairfax received a facsimile transmission addressed to an employee of Fairfax at the North Shore Times wanting an advertisement to be published in the business opportunity column of local papers published by Fairfax. The form of the advertisement read:

40K-60K potential income, plus 20% - 60% return on invest plus passive income every year. Branch in major shop centres T9404683 M025468357.

[54] The facsimile appeared on its face to have come from Mr Burchell. The advertisement was run in a number of publications between 29 and 31 August until stopped by Fairfax.
[55] The Judge also heard evidence from Mr Visser, who was an investigator employed by the National Enforcement Unit of the Ministry of Economic Development. He had the job of investigating the Hotels International advertisement. He said he telephoned the phone number in the advertisement and posed as a member of the public showing interest in the advertisement. The person to whom he spoke said he was Mr Burchell. Mr Visser arranged to meet Mr Burchell. Their meeting took place at a cafe. Mr Visser’s evidence was that over the course of their discussion Mr Burchell offered to sell him 45,000 shares in the business. They also discussed possible appointment as director of the company as well as potential earnings to be made from commission on sales. Mr Visser said he told Mr Burchell he was not interested in view of the capital cost of the proposed share purchase and left.
[56] Mr Lisipeki’s evidence was that he had not authorised Mr Burchell to place the advertisements or to sell shares in the company. Nor had he authorised him to offer employment or directorship to anybody. When he was shown the documents filed in the Companies Office over his signature, Mr Lisipeki said that the addresses shown were not his and were not known to him. The Judge considered that, having regard to other evidence, they appeared to be addresses supplied by Mr Burchell and were connected to him.
[57] The issue here was whether it had been proved that Mr Burchell was involved in the management and control of the business.
[58] The Judge accepted Mr Lisipeki’s evidence as truthful and reliable. He found as a fact that the advertising material was placed by Mr Burchell or at his instigation. The Judge also accepted Mr Visser’s account of his dealings with Mr Burchell. Accordingly, the Judge concluded:[14]

Taking a broad view of the matter it is not possible to reach any other conclusion than that [Mr Burchell] had assumed control of the business of Hotels International Ltd, such as it was. I am persuaded beyond reasonable doubt that is so.

[59] We agree. Again, there was evidence to support this conclusion. As to the concern about Mr Visser’s evidence, this was evidence of a bona fide investigation. It was not a situation of generating offending as such. No issues of unfairness or oppression arise from the way in which the evidence was obtained. Issues of reliability were for the Judge but there was, in any event, nothing about the circumstances which would give rise to concerns about reliability.
[60] We dismiss the conviction appeal.

Procedural issues

[61] Having dealt with the substance of the appeals, we need to deal with some procedural matters. These matters arise because at the hearing of the appeal we declined two applications from Mr Burchell, one relating to name suppression and the other concerning the appointment of an amicus. We said we would give our reasons for these decisions in our judgment.

Name suppression

[62] When the hearing began, Mr Burchell said he should have name suppression. No application had been made for suppression. Mr Burchell said that was because he understood the effect of a name suppression order in the District Court in relation to separate proceedings gave him name suppression in this Court.
[63] Apart from the District Court order, Mr Burchell argued suppression was necessary to protect him from further victimisation and abuse.
[64] The Crown opposed name suppression. Ms Jelas said the delay in seeking suppression was a relevant factor especially as Mr Burchell had been represented by counsel at both trials and given the matters the subject of the appeals were now somewhat dated.
[65] In our view there was no basis for name suppression. There was no suppression at the time and given the trials took place in 2007 and 2008, the horse has well and truly bolted. There was nothing before us to suggest any prejudice to pending District Court proceedings and the order made in the District Court certainly did not purport to have any broader effect. This was not a case in which there were other interests outweighing the public interest in open justice.[15]

Request to appoint an amicus

[66] Mr Burchell asked the Court to appoint an amicus as he said he could not deal with the appeals himself. To put this request in context, we need to say something of the history of the appeals.
[67] Mr Burchell filed his appeal against sentence in the appeal numbered CA6/2008 on 7 January 2008. The appeal in CA6/2008 was set down for hearing in the week beginning 21 April 2008. That fixture was adjourned when Mr Burchell indicated he wanted to add a challenge to the convictions and counsel for Mr Burchell was not in a position to prepare for a conviction appeal in the time available.
[68] CA6/2008 and another, unrelated, appeal by Mr Burchell were then given a fixture on 19 August 2008. Mr Burchell later sought and was granted an adjournment on the basis the matters were not ready to proceed. Both matters were adjourned to another fixture on 10 November 2008. In granting the adjournment on 15 August 2008, Robertson J noted the need for Mr Burchell to clarify what matters were in contention.
[69] The next scheduled hearing of the two appeals, on 10 November 2008, was adjourned on 2 November 2008. By that time, Mr Burchell had engaged counsel.
[70] The appeal in CA808/2008 was filed on 24 December 2008. A hearing date of 2 March 2009 was allocated to CA6/2008, CA808/2008 and for the unrelated appeal. Counsel for Mr Burchell sought and was granted leave to withdraw. The 2 March date was adjourned.
[71] There were then various telephone conferences to try to resolve questions about Mr Burchell’s representation and the disposal of the three appeals. Finally, at a telephone conference on 10 June 2009, Robertson J recorded that, with Mr Burchell’s agreement, all appeals pending in this Court were to be set down for hearing in the week beginning 28 September 2009.
[72] Mr Burchell later sought an adjournment of the 1 October 2009 hearing date after problems with legal aid. Information was sought and obtained from the Legal Services Agency as to the position. Mr Burchell was advised his prospective counsel could file new legal aid applications and seek to be assigned. Prospective counsel subsequently advised he was unable to accept instructions.
[73] There was a further telephone conference on 9 November 2009. At that point, Robertson J set down the (by then) four appeals to be heard on 11 March 2010 on the basis that would give Mr Burchell sufficient time to obtain legal representation. At the hearing on 11 March, we adjourned the hearing of the other two (unrelated) appeals to enable Mr Burchell to make various applications in respect of those appeals.
[74] It was against this background that we declined to appoint an amicus. The critical factor in our decision to decline to do so was that it did not appear to us that any of the matters raised on the appeals were such as to require assistance to the Court in the form of an amicus. In addition, we were concerned to avoid further delays in hearing these appeals given that Mr Burchell had been given numerous opportunities and ample time to sort out issues of representation and because the appeals relate to events which are already dated.
[75] As matters transpired, Mr Burchell made submissions in support of the appeals and he seemed to us to be able to put across his case on both appeals. He asked that his wife be permitted to sit with him to assist him and we allowed Mrs Burchell to do that. Further, while Mr Burchell continued to express concerns about the adequacy of disclosure and the provision of materials to him, he appeared familiar with the relevant factual matters.
[76] The suggestion that there has not been adequate disclosure of materials has been something of a continuing theme in that similar complaints were made by Mr Burchell’s counsel in the course of the trial before Judge Gittos. Ms Jelas did not accept disclosure was inadequate. Nonetheless, she offered to have the relevant information copied and provided to Mr Burchell by the end of 22 March 2010. We made directions to that effect at the hearing. Those directions were confirmed in a separate Minute issued following the hearing.[16]
[77] Mr Burchell was also given time (until the end of 23 April 2010) to provide any further written submissions on the appeals. No further submissions were received.

Disposition

[78] As noted, Mr Burchell initially filed only a sentence appeal in relation to CA6/2008. He needs an extension of time in order to add a conviction appeal at this late point. Mr Burchell did signal at a fairly early stage his intention to file a conviction appeal in respect of CA6/2008 albeit he did not follow up on that despite having various opportunities to do so. Accordingly, the application for an extension of time to file the conviction appeal in CA6/2008 is granted but the appeals against conviction and sentence are dismissed. The appeal against conviction in CA808/2008 is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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[1] R v Burchell HC Auckland CRI-2005-044-7058, 4 December 2007.
[2] R v Burchell DC Auckland CRI-2006-044-007795, 24 September 2008.
[3] R v Burchell DC Auckland CRI-2006-044-007795, 27 November 2008.

[4] The defence of “reasonable cause” is discussed in R v Constable CA359/99, 7 December 1999 at [30].

[5] Associate Judge Lang in his judgment on Baycorp’s petition for an order of adjudication notes that the judgment sum was $2,816.51: HC Auckland CIV-2003-404-5057, 29 June 2004.
[6] At [10].
[7] At [11].
[8] Ibid.
[9] R v Holt [2006] DCR 669 (CA).

[10] We note that in R v Parkin CA489/05, 23 June 2006 at [21] Gendall J for the Court suggested that the presence of a positive defence “indicate[d]” a legislative intention to impose absolute liability.
[11] At [15].
[12] At [16].

[13] We note Associate Judge Lang directed the order adjudicating Mr Burchell bankrupt lie in Court until 5pm on 7 July 2004 to give Mr Burchell a final opportunity to pay the debt or to reach some form of compromise with Baycorp.
[14] At [33].
[15] See, for example, Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).
[16] 16 March 2010.