Ngamu v R [2010] NZCA 256; [2010] 3 NZLR 547 (24 June 2010)

Last Updated: 24 January 2018

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ORDER PROHIBITING PUBLICATION OF THE REASONS IN NEWS MEDIA OR ON THE INTERNET OR ANY OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF THE NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA603/2009

CA640/2009

CA654/2009
CA655/2009 [2010] NZCA 256

BETWEEN ELAINE PATRICIA NGAMU (CA603/2009), GEORGINA RYDER (CA640/2009), KAREN ROWENA NGAMU (CA654/2009) AND DONNA TE ARIKI PAUL (CA655/2009)

Appellants

AND THE QUEEN Respondent

Hearing: 4 May 2010

Court: Chambers, Potter and Miller JJ Counsel: M J Levett for Elaine Ngamu

S D Cassidy for Georgina Ryder

J N Bioletti for Karen Ngamu

A C Balme for Donna Paul

N P Chisnall and M L Schwalger for Respondent

Judgment: 24 June 2010 at 9.30 am

_{JUDGMENT OF THE COURT}

A All the appeals are allowed.

_{B All the convictions are set aside.}

NGAMU & ORS V R CA CA603/2009 [24 June 2010]

D An order is made prohibiting publication of the reasons in the news media or on the internet or in any other publicly available database until final disposition of the new trial. Publication in a law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Chambers J)

A cheque theft ring

[1] Between March 2005 and June 2006, mail was stolen from various post boxes in Auckland and Warkworth. Some of the mail contained cheques. Some of these cheques were fraudulently altered. The pattern was this. The cheque would be amended so as to create a false payee. The cheque would then be taken to the bank and lodged for the credit of the false payee. Someone with authority to operate the false payee’s account would then withdraw the proceeds of the cheque. These unlawfully gained proceeds were then split among some or all of the wrongdoers.

[2] The Crown case was that this cheque theft operation was being run by a criminal gang. The scheme had seven masterminds, of whom the current appellants, Elaine Ngamu, Georgina Ryder, Karen Ngamu, and Donna Paul were four. The other three were Jack Rasmussen, James Ryder and Ronald Richards.

[3] The Crown case was that these principal participants engaged a number of secondary participants. In the end, 19 secondary participants were charged. Their role was to allow the use of their bank accounts for deposit of the altered cheques. In return for this, they were generally paid a commission once the proceeds were withdrawn. The Crown proceeded against the secondary participants in a separate trial. We are not concerned with them.

[4] The seven principal participants faced a joint trial before Judge Joyce QC and a jury. With respect to each, the Crown alleged that he or she dishonestly and without claim of right, used a document, namely the cheque in question, with intent to obtain a pecuniary advantage. Each charge was brought under s 228(b) of the Crimes Act 1961.

[5] At trial, the prosecutor contended that the seven principal participants were engaged in a common purpose or joint enterprise. But, on the Crown case, they performed different roles in this enterprise. Messrs Rasmussen, Ryder and Richards were involved in stealing the cheques. Elaine and Karen Ngamu and Ms Ryder were involved in making alterations to the stolen cheques so that they could be banked. Ms Ryder and Karen Ngamu were also involved in banking the cheques into the accounts of the secondary participants (who were allowing their accounts to be used for this purpose). Ms Paul’s principal role was to recruit further participants who would allow their bank accounts to be used by having the stolen cheques deposited in them and then allowing the cleared funds to be subsequently withdrawn.

[6] The jury found all of the seven principal participants guilty on a large number of the charges. Messrs Rasmussen, Ryder and Richards have not appealed. Elaine Ngamu appeals against conviction. Ms Ryder, Karen Ngamu and Ms Paul appeal against their convictions and the sentences Judge Joyce subsequently imposed.

Issues on the appeal

[7] The appellants raised a number of issues, but in the end we need deal with only one of them. That is because we are satisfied that on this point the Judge was, with respect, wrong, with the consequence that the convictions must be set aside and a new trial ordered. The single issue we need to determine is: did the Judge set the jury the wrong task? We are satisfied he did.

[8] Each cheque stolen and tampered with was, correctly, the subject of a separate charge. A charge under s 228(b) has a number of elements which the Crown must prove. They are that:

(a) the accused used the document (here, the cheque); (b) the accused did so dishonestly;

(c) the accused did so without claim of right; and

(d) the accused did so with intent to obtain a pecuniary advantage.

[9] In this case, by the time of closing addresses, the Crown relied solely on s 66(1)(a) of the Crimes Act. They abandoned their earlier (additional) reliance on s 66(1)(b) and (c). This meant the Crown had to prove each accused “actually committed” the offence; that is, each accused actually used the document.

[10] What was “the use” the Crown here relied on? At least by the time of its closing address, the Crown categorised the use as “a continuing use, running from the time the cheque was stolen to the time it was banked”. The Judge accepted that categorisation.¹ In his summing-up, he described the use as being “continuing in nature”. He too saw the use as running “from the time of a cheque’s theft to the time of its wrongful banking, if that has occurred”.²

[11] Such terminology is ambiguous, however. Does it mean that, from the time of a cheque’s theft to the time of its wrongful banking, there is a single use or does it mean that there are or may be a number of uses within the continuing use? This may be important as to what has to be proved, as in this case no one person did all the steps from the time of the cheque’s theft to the time of its wrongful banking. Rather, the Crown case was that different accused had done the different steps making up the continuing use.

¹ Or perhaps the Crown had adopted terminology the Judge had previously used.

[12] “Use” as used in s 228(b) is an elastic term. There is not one right answer to the question we have posed. Before us on appeal, all counsel agreed that the following acts could amount to separate uses:

• altering the cheque;

• arranging an account for the cheque to be paid into;

• depositing the cheque in the false payee’s account.

[13] There was dispute as to whether stealing the cheque (in the circumstances of this case) could amount to “use” for the purposes of s 228(b). Mr Chisnall, senior counsel for the Crown on this appeal, submitted we did not need to answer that question, as none of the current appellants was alleged to have stolen the cheques.

[14] It is undoubtedly the case that the matter is more easily put to the jury if each of the separate acts referred to in [12] above is considered a “use” in its own right. But, on balance, we have decided it is preferable to view the “continuing use” as a single use, a use not completed until the cheque was deposited in the false payee’s

account. This approach seems more in tune with the reasoning in R v Baxter,³ even

though the facts of that case were quite different.

[15] This approach, however, causes a problem because, as we have said, no one person did all the steps. One way to look at it would be to say that the person who deposited the cheque was the user, the others being helpers. That was not the Crown’s analysis, as they did not in the end rely on s 66(1)(b) and (c). They were right not to do so. First, it would have needlessly complicated what was already a complex indictment and would have made more convoluted the necessary directions in the summing-up. Secondly, that sort of analysis seems rather forced and unnatural, effectively making the accused who was last in the chain appear as if he or she were “the king-pin”. It was appropriate the accused were all presented to the

² _{R v Ngamu DC Auckland CRI-2007-044-7848, 2 June 2009 at [12] [the summing-up].}

³ R v Baxter [1998] 3 NZLR 144 (CA).

jury on effectively an equal footing. So how does the law cope with a situation where no one accused does all the steps constituting the complete actus reus?

[16] The criminal law recognises that an accused can be liable as a principal in respect of his or her part of the actus reus, provided that another does or others do the things necessary to complete the actus reus. A very good example is given in Adams on Criminal Law:⁴

Where the actus reus of an offence consists of different elements, two persons can be guilty as joint principal parties by committing the elements between them, for example, if A steals while B threatens violence, both are principal parties to robbery. Although in the last example neither A nor B individually commits both physical elements of the offence, s 66(1)(a) may be applied distributively to include all persons who actually do one or more of the acts which constitute the offence.

[17] Because of what follows, it is important to note at this stage that the line of authority supporting this theory of joint principals and a distributive application of s

66(1)(a) has nothing to do with that exception to the hearsay rule known as the co- conspirators’ rule of evidence.

[18] We now apply s 66(1)(a) to s 228(b) in the circumstances of this case, assuming a “continuing use” approach. The Crown had to prove beyond reasonable doubt, with respect to each accused and each cheque, that:

(a) that accused either altered the cheque or arranged an account for it to be paid into or deposited the cheque in the false payee’s account (as the case may be);

(b) that another or others did the other steps necessary to complete the use

(the actus reus);

⁴ Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA66.15 (1)]. See also the discussion in Andrew Simester and Warren Brookbanks Principles of Criminal Law (3^rd ed, Brookers, Wellington, 2007) at [6.3]. See also David Lanham “Complicity, Concert and Conspiracy” (1980) 4 Crim LJ 276 and R v Wyles [1977] QdR 169 (CA).

(c) that accused did his or her step dishonestly;

(d) that accused did his or her step without claim of right; and

(e) that accused did his or her step with intent to obtain a pecuniary advantage.⁵

[19] Despite the large number of counts, there was no shortcut. Obviously, in a case like this, deciding on guilt or innocence would be a time-consuming task for the jury. But it was an inevitable consequence of this multi-accused, multi-charge indictment. Defendants’ rights cannot be circumscribed by what is essentially the Crown’s discretion to have a large number of charges heard together. Obviously, juries should be helped when facing trials of this magnitude. It would be very desirable in such a case that there be individual question trails with respect to each charge and each defendant. It would also be very desirable that the jury be given, in written form, a schedule delineating evidence specifically associated with a particular charge. The Crown did prepare such a schedule. And the jury would require a verdict schedule so that they could complete their verdicts as they proceeded through the various counts, accused by accused.

[20] Unfortunately, the Judge did not adopt a “charge by charge” approach. The essential structure of his summing-up was this. First, he gave general directions. He then moved to the elements of s 228 and gave specific evidence directions pertinent to this case. That was what we shall call the first phase of the summing-up. The second phase was a summary of the prosecutor’s final address and defence counsel’s final addresses. The third phase was the introduction of a question trail. Because of the importance of this question trail to matters that have arisen on this appeal, we now set it out in full:

Preliminary

1. The starting point is that our law says that where individual accused are charged with separate substantive offences the prosecution must

⁵ We refer to these elements hereafter as “element (a)”, “element (b)” and so on.

prove beyond reasonable doubt all the essential (and disputed) elements of the substantive offences on the basis of all the evidence led.

2. In this trial 7 individual accused are charged with up to 59 separate substantive offences of dishonest use of cheques in alleged furtherance of an alleged joint enterprise.

3. That means that in this trial the prosecution must prove on the basis of all the evidence led the essential (and disputed) elements of those substantive offences including that they were committed in furtherance of that joint enterprise.

4. I have already explained the essential elements of each count itself (ie use of a document, dishonestly and without claim of right, intention to gain pecuniary advantage).

5. Should you be satisfied that there was a joint enterprise then the question becomes whether or not you are satisfied that some or all of the individually named in each count accused are to be identified as members of that joint enterprise for the period during which the offence in that count was committed and that the cheque described in that count was used in furtherance of that enterprise.

6. So you approach your verdict-reaching task by asking and answering the questions on the next two pages just as far as your successive answers make it necessary to go.

Use of Evidence to reach verdicts

Step 1: The alleged joint enterprise

1. Are you satisfied beyond reasonable doubt from the pool of evidence relating to counts 1-59 that there was a joint enterprise to do unlawful acts of the type alleged by the Crown?

2. If yes, proceed to step 2 (membership).

3. If no, return verdicts of not guilty in respect of all accused on all counts.

Step 2: Membership

1. Are you satisfied beyond reasonable doubt that for the periods of involvement alleged by the Crown (ie the period of time during which each count is alleged to have been committed) individual accused were members of the joint enterprise?

2. For each individual accused in respect of whom you are so satisfied proceed to step 3 (use).

3. In relation to each individual accused in respect of whom you are not so satisfied for any period, find that accused not guilty.

4. In the case of an individual accused in respect of whom you are so satisfied, but for a lesser time period of membership, proceed to and deal with step 3 (use) in respect of that accused simply and only in respect of the count or counts that fall within that lesser period of membership.

Step 3: Use

1. Using (as you work through the indictment) the pool of evidence for each count ask yourselves in respect of each count whether you are satisfied beyond reasonable doubt that the use of the particular cheque referred to in each count was as an act in furtherance of the joint enterprise.

2. If yes, then find those accused who are proven beyond reasonable doubt to be members of the alleged joint enterprise at the time period for that particular count guilty.

3. If no, then find those accused not guilty for that particular count.

[21] We know from experience that Judge Joyce is a master at the preparation of question trails. But, on this occasion, we fear that, like Homer, he nodded. We can well understand that the Judge thought it imperative to try to simplify the jury’s task, something, generally speaking, we applaud. But a judge’s attempt at simplification must not lead to the case being presented to the jury in a different way from what the substantive law requires.

[22] There are three fundamental difficulties with the Judge’s question trail. First, one has only to compare the three steps in the Judge’s question trail with the five steps in [18] above to appreciate that the Judge’s approach was significantly different from what we see as being the elements of each charge, as applied to the facts of this case. It is perfectly possible, and indeed desirable, to draft jury questions based on the facts of the case, but those questions cannot be at variance with the applicable substantive law. In our respectful view, the Judge’s questions were at variance with the law.

[23] Secondly, and perhaps most importantly, the Judge’s question trail permitted the jury to find an accused guilty even if he or she had done nothing with respect to a particular cheque. Step 3(1) did not require, before a particular accused could be found guilty, that accused to have done anything with respect to that cheque. That accused could be found guilty through membership of the joint enterprise, provided some other member or members of the joint enterprise “used” the cheque. Inevitably, the Judge’s approach led to across the board verdicts of “guilty” or “not guilty” on each charge, as in fact happened. The Crown did not rely here on s 66(2). Nor was s 310 (conspiracy to commit an offence) relied on. It was fundamental that a particular accused must have done something with respect to a particular cheque before he or she could be liable under s 228(b), applying s 66(1)(a), with respect to that cheque.

[24] Thirdly, the Judge’s first two steps were an unorthodox way of testing whether elements (c)-(e) of the crime were satisfied. Clearly, the Judge must have intended those steps to cover the (c)-(e) elements, as they are not referred to elsewhere in the three steps. And remember, a “yes” to the three steps led inexorably, on the Judge’s reckoning, to a finding of guilt.

[25] We suspect the Judge’s answer to this criticism would be that, if the jury were satisfied that, at the time of a particular charge, a particular accused was still a member of the joint enterprise to steal and bank cheques, then the jury would have to be satisfied that that accused was acting dishonestly, without claim of right, and with intent to obtain a pecuniary advantage. Thus, although those three elements were not specifically referred to in the question trail, positive answers to questions 1 and 2 would necessarily assume satisfaction with respect to the elements (c)-(e). We are not sure that can safely be assumed in circumstances where the Crown has relied solely on s 66(1)(a). What must first be determined is what the particular accused has done with respect to the particular cheque which was the focus of the particular charge. Only when that act has been isolated and established can one then enquire as to that accused’s state of mind when doing that act.

[26] How did the Judge reach the view he did as to the three issues the jury had to answer? Fortunately, the Judge explained his approach very clearly in two

judgments he delivered when dismissing applications by various accused for discharge under s 347 of the Crimes Act.⁶ He then delivered a minute a little before he summed up.⁷ This minute came to be issued in the following circumstances. After the close of evidence, the Judge gave his proposed question trail to counsel. This apparently provoked from defence counsel “a host of issues”.⁸ Essentially defence counsel were still complaining about the Judge’s approach as exemplified in the two 347 judgments. In the minute, the Judge reviewed his earlier stance but

_{concluded he had not missed or misapprehended anything that mattered.}⁹ _Before

going on, we observe in passing that we applaud the Judge’s decision to issue the minute. It made clear to us his thinking after defence counsel had advised that they disputed his approach. We would encourage all judges to make a minute whenever counsel do not agree on the form of a question trail. Such a minute should record the nature of the dispute and the judge’s reasons for adopting the form of question trail he or she ultimately did.

[27] Judge Joyce’s reasoning is perhaps most clearly set out in the second 347 judgment. The Judge began by noting that s 12A of the Evidence Act 2006 had preserved the common law exception to the hearsay rule, usually referred to as the co-conspirators’ rule of evidence.¹⁰ The Judge then went on to consider the leading cases on the co-conspirators’ rule, in particular R v Tripodi,¹¹ R v Qiu¹² and R v Messenger.¹³ From these cases, and others he mentioned, the Judge concluded that, where a charge contains “a joint enterprise assertion”, the issue became “whether the accused is to be identified with the enterprise and then with such offending as was in obvious conformity – in furtherance – of it during his or her span of participation”.¹⁴

As the Judge saw it, the question, with respect to each count, could be categorised as:¹⁵

⁶ R v Ngamu DC Auckland CRI-2006-044-6478, 28 April 2008 [the first 347 judgment] and R v

_{Ngamu DC Auckland CRI-2007-044-7848, 22 May 2009 [the second 347 judgment].}

⁷ _{R v Ngamu DC Auckland CRI-2007-044-7848, 26 May 2009 [the question trail minute].}

⁸ _{At [1].}

⁹ _{At [8].}

¹⁰ _{Second 347 judgment at [5].}

¹¹ _{R v Tripodi [1961] HCA 22; (1961) 104 CLR 1.}

¹² _{R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1.}

¹³ _{R v Messenger [2008] NZCA 13.}

¹⁴ _{Second 347 judgment at [43]-[56].}

¹⁵ At [57].

Did this offence arise directly out of the joint enterprise to the extent of the particular accused’s effective identification therewith?

[28] That thinking permeated the Judge’s reasoning at the time when the Crown was relying on s 66(1)(a)–(c). The Judge did not deviate from that thinking even after the Crown limited its case against each accused to s 66(1)(a).

[29] With respect to the Judge, we consider he erred when he deduced from the cases cited the proposition that a “joint enterprise” assertion in some way altered what substantively the Crown had to prove. The co-conspirators’ rule of evidence is just that – a rule of evidence. Where the circumstances for the rule’s application arise, certain hearsay evidence otherwise inadmissible against a particular accused can become admissible. But the fact that more evidence may come in has no effect

on the elements of the crime in question.¹⁶ Nor does it affect the fundamental nature

of a joint trial, where each accused is entitled to be judged individually, solely on evidence admissible against him or her. Mr Chisnall, while he defended the Judge’s approach on the appeal before us, accepted the Judge had moved the law “beyond the bounds of settled authority”. He certainly did, and, in our view, in an impermissible way.

[30] We accept that the Crown put the case to the jury in line with the Judge’s question trail and summing-up. We do not criticise the Crown for putting the case in that way, as they were bound by the Judge’s approach as set out in the 347 judgments and the proposed question trail. Unfortunately, the case was put wrongly because the Judge had reached a wrong view of the law. Of course, the fact these accused were allegedly acting in a “joint enterprise” was a very important feature of the trial and the Crown case. First, it may have affected what evidence was

admissible against each accused. (The appellants’ counsel accept that.¹⁷) Further, if

the Crown could prove a joint enterprise, it made more likely – much more likely – that when a particular accused, X, altered, say, a particular cheque, that act of alteration was done dishonestly, without claim of right, and with intent to obtain a pecuniary advantage (elements c-e). Further, if the Crown could prove X was a

¹⁶ _{See R v Qiu at [24]; R v Messenger at [24]–[25]; R v Tripodi at 6.}

¹⁷ We express no view on the application of the co-conspirators’ rule in this case, as we heard no argument on it.

member of the joint enterprise, it might also have made the jury more inclined to accept in a particular case that she was responsible for altering the cheque, even if the direct evidence she was the alterer of that particular cheque was a little shaky. But the “joint enterprise” evidence should not have made this a case legally based on joint enterprise liability. The Crown case should have stood even if the jury rejected or were unsure about the evidence of some grand conspiracy, provided that in a particular case the accused knew that others would do or had done their part, with the consequence that the accused had the necessary mens rea and elements (c)-(e) could

be established.¹⁸

[31] Because in our respectful view the Judge set the jury the wrong task, we have no alternative but to allow the appeals against conviction. We have considered whether this is an appropriate case in which to apply the proviso to s 385(1). We have concluded it is not. We cannot be sure on any count that the jury was sure a particular accused actually “used” the particular cheque; the guilty verdict may simply reflect the jury’s view that some other member of the conspiracy had used the cheque.

Unreasonable verdicts

[32] Two of the appellants contended that the verdicts against them were, in any event, unreasonable. We have decided not to rule on that submission. Mr Chisnall, for quite understandable reasons, concentrated his efforts on the fundamental question with which we have just been grappling. If he had managed to uphold the Judge’s essential approach, the complaints about individual charges largely fell by the wayside, because all that really mattered was showing that the particular accused continued to be members of the underlying conspiracy at the time the particular offence occurred.

[33] This was a trial with more than 400 pages of evidence. We do not consider we have had sufficient help from counsel to be able to work out whether or not the jury, if properly directed, could have reasonably convicted. The better course in the

¹⁸ This would be easy to prove in the case of those doing the final step, the depositing of the cheque.

circumstances is for us simply to order a new trial on all counts. If, in light of the reasoning in this judgment, any counsel considers that the evidence in this trial did not establish a case against an accused on one or more of the charges, that counsel will be able to test that question by bringing a fresh application under s 347.

Result

[34] We allow the appeals. We set aside all the convictions. We order a new trial.

Solicitors:

Crown Law Office, Wellington