[1] Mr Adjei was charged with forging ASB bank statements (count 1) and using the forged statements to obtain a loan from BNZ (count 2). He was found guilty on both counts by a jury sitting in the District Court at Papakura, and was sentenced by Judge McAuslan to 21 months imprisonment.
[2] This appeal against conviction relies on three primary grounds which Mr Adjei contends gave rise to a miscarriage of justice:

(a) erroneous advice by trial counsel led to a statement by Samuel Kumaran being read by consent at the trial;

(b) had the evidence from Stephen To that was presented to us been led at trial the jury might reasonably have found Mr Adjei not guilty on both counts;

(c) the Crown failed to disclose an internal BNZ memorandum.

An affidavit in support of the appeal was sworn by Mr Adjei. Mr To gave vive voce evidence and was cross-examined by Ms Laracy.

Background

[3] Mr Adjei agreed to purchase a residential property at Papakura for $300,000. He used the name Paul King, but nothing turns on that. Having unsuccessfully approached other banks for finance, Mr Adjei approached BNZ.
[4] The application to BNZ for finance was supported by ASB bank statements in the name of Paul King. It is common ground that these documents were false, and that they had been forged. The ASB statements related to an account belonging to a person who had formerly resided in the house where Mr Adjei was residing when he applied to BNZ for finance.
[5] Finance was approved by BNZ and Mr Adjei purchased the property. Within a short time he was in default and subsequent investigations by BNZ revealed that the false ASB statements had been used in connection with the loan.
[6] In a video interview Mr Adjei denied that he had forged the ASB statements or that he had any knowledge that they had been used in support of the loan application to BNZ. He claimed that the bank statements had been forged and provided to BNZ by Mr Kumaran who had sold the property to him and assisted him to obtain finance.
[7] Jason Longo, the Papakura branch manager of BNZ, gave evidence that he had processed Mr Adjei’s loan application on 12 March 2008. Mr Longo said that Mr Adjei came to the branch by himself and provided the various documents supporting the loan application, including the forged ASB bank statements. He denied that Mr Kumaran was present at the meeting. Mr Longo also said that part way through the meeting he was joined by another bank officer, Vinod Rathore.
[8] Mr Rathore explained that he was new at the bank and had joined the branch manager and Mr Adjei as part of his training. He said that Mr Adjei had arrived at the bank by himself and although he did not see the documents supporting the loan application being handed to Mr Longo, he saw the documents, including bank statements, on the table. Mr Rathore said that only Mr Adjei, Mr Longo and himself were present.
[9] Prior to the trial Mr Kumaran was diagnosed with cancer. About three months before the trial was due to begin the Crown applied to have Mr Kumaran’s evidence taken ahead of the trial. The application was granted. However, the evidence could not be taken because Mr Kumaran was admitted to hospital. Shortly before trial the Crown made application to have Mr Kumaran’s statement read at trial. Following advice by trial counsel, Mr Adjei consented to that application and Mr Kumaran’s statement was read at trial. Subsequently Mr Kumaran died.
[10] In his statement Mr Kumaran said that he was a property developer and that he had renovated the property in question which had been placed on the market for sale. Having been introduced to Mr Adjei, who was looking for an investment property, they reached agreement on a purchase price of $300,000 and in due course a valuation and agreement for sale and purchase were completed. Later he was advised by Mr Adjei that the loan had been approved. Mr Kumaran’s statement does not indicate that he assisted Mr Adjei with arranging finance.
[11] As the result of a pre-trial ruling the Crown also led propensity evidence concerning Mr Adjei’s earlier convictions in 2005. On those occasions Mr Adjei obtained a finance card (which is similar to a credit card) and drivers licences by providing false documentation.
[12] Mr Adjei did not give or call evidence. As already mentioned, he was found guilty on both counts.

Additional information before us

[13] There are three pieces of additional information: Mr Adjei’s affidavit; Mr To’s evidence; and the internal BNZ memorandum.

Mr Adjei’s affidavit

[14] In his affidavit in support of the appeal Mr Adjei deposes:

...

Mr. Kumaran was the vendor of the property that I purchased. He was a property developer. He had told me that he would take care of finance for me. I was sceptical about obtaining finance given that I did not have a bank account in my own name. I gave Mr. Kumaran my driver’s licence and a GE Money card in support of any home loan application.
The first I learnt that a bank statement in my name had been given in support of the loan application is when I was contacted by a fraud investigator in July 2008.
Mr. Kumaran was important to my case as I suspect that he was the person that gave the false bank account to the manager of the Bank of New Zealand (“BNZ”) in support of the application for a home loan.
Mr. Kumaran was also present at a meeting at the BNZ on 12 March 2008 where he, Mr. Jason Longo from BNZ, and I were present. In his evidence Mr. Longo denied the presence of Mr. Kumaran. Mr. Longo gave evidence that I gave him the false bank statement.
I was concerned when I was told that Mr. Kumaran would not be a witness at the trial as I wanted him to be questioned on arranging the home loan for me, that he had submitted the false bank statement, and that he had been present at the meeting on 12 March 2008.
It was important to me that Mr. Kumaran was a witness given Mr. Longo had denied Mr. Kumaran’s presence at the meeting at the BNZ.
Mr. Faleauto [trial counsel] advised me that it was helpful to my case if Mr. Kumaran did not give evidence. That was on the basis that Mr. Kumaran could at least not deny that he had been at the meeting at the BNZ. That is, if Mr. Kumaran denied that he was present at the meeting and denied giving the false bank statement in support of the home loan, then it would make the case against me even stronger.

Although Mr Adjei accepted the advice of trial counsel about consenting to the Crown’s application, he claims that he nevertheless had reservations about doing so.

[15] Mr Adjei also deposes that Mr Kumaran had made approaches on his behalf to the National, Westpac and ANZ Banks for a home loan. He did not know what information Mr Kumaran had given those banks on his behalf. Mr Kumaran had also attended his house on a number of occasions to discuss the purchase and finance. He surmises that Mr Kumaran took and falsified the ASB statement that had been sent to his address. Mr Adjei said that he had advised trial counsel about the approaches to the other banks.
[16] In addition, Mr Adjei notes two questions from the jury which he claims are relevant. The first question asked whether there was video footage at the bank that showed whether or not Mr Kumaran was present. We were advised from the bar that the footage had been erased. The second question asked why Mr Kumaran had not given evidence.

Mr To’s evidence

[17] Mr To, a banking consultant with ANZ National Bank, said that on 3 March 2008 he was approached by Paul King for finance concerning the Papakura property. Mr Kumaran, an existing client of his bank, assisted Mr Adjei with the application and supplied the documentation. Mr To could not remember whether he had any personal contact with Mr Kumaran or whether the contact was by way of telephone. He recalled some bank statements being submitted in support of the application, possibly by fax, and identified the ASB statements in the name of Mr King. The application was declined.

Internal BNZ memorandum

[18] A few days before the hearing in this Court, Ms Laracy informed Mr Patel that she had discovered an internal BNZ memorandum dated 19 June 2008. This memorandum was written after Mr Adjei had defaulted in relation to his mortgage to the bank.
[19] Mr Patel drew our attention to several parts of the memorandum which he claimed were relevant to this appeal: indications that the property value had been “ramped” from $233,000 to $300,000; contrary to bank policy, a private treaty checklist had not been completed; the original valuation had not been obtained; and concerns about the reliability of the valuation.

First ground of appeal – erroneous advice by counsel

[20] Mr Patel argued that trial counsel’s erroneous advice that Mr Adjei should consent to Mr Kumaran’s statement being read at trial resulted in a miscarriage of justice. His submission was that trial counsel should have either opposed admission of the statement or, alternatively, applied for an adjournment of the trial.
[21] According to Mr Patel, the process that was followed: deprived Mr Adjei of his fundamental right to cross-examine Mr Kumaran; led to a statement which was not on oath being admitted as evidence; deprived the jury of an opportunity to assess Mr Kumaran in person; and led to the jury’s questions which indicated that they were troubled by Mr Kumaran’s failure to give evidence.
[22] We have not been persuaded that this ground of appeal has any merit.
[23] As required by s 22 of the Evidence Act 2006 the Crown gave notice of its intention to offer Mr Kumaran’s hearsay statement on the basis that he was unfit to give evidence. As Mr Adjei acknowledges in his affidavit, the decision not to oppose admission of the statement was a tactical decision. This strategy enabled trial counsel to close to the jury on the basis that it was Mr Kumaran (and, on trial counsel’s closing address, possibly Mr Longo) who was involved in the fraud. There was, of course, no response from Mr Kumaran to that allegation. In other words, the tactical decision was favourable to the defence rather than the Crown.
[24] Mr Patel’s argument proceeded on the assumption that if the defence had not allowed the statement to be read, the prosecution would have sought an adjournment to enable Mr Kumaran to recover from his illness and give evidence. However, in that context the decision to allow the evidence to be read made perfect tactical sense. It was extremely unlikely that Mr Kumaran would have admitted under cross-examination that he was at the BNZ or that his evidence would in some way have exonerated Mr Adjei. To the contrary, Mr Kumaran’s evidence would probably have supported the already damaging evidence of the bank officers that it was Mr Adjei who was perpetrating the fraud on BNZ.
[25] Given that situation, we have difficulty with Mr Patel’s alternative proposition that trial counsel erred by failing to seek an adjournment. For the reasons already given we cannot see how an adjournment would have advanced Mr Adjei’s defence.
[26] We do not accept that trial counsel’s advice could be properly categorised as erroneous or that it gave rise to a real risk of an unsafe verdict in terms of R v Sungsuwan[1]. This ground of appeal fails.

Second ground of appeal – fresh evidence

[27] Mr Patel claimed that Mr To’s evidence supported the defence case and contradicted Mr Kumaran’s statement. He submitted that if the evidence had been

led at trial it would have bolstered the credibility of Mr Adjei’s statement in the eyes of the jury and undermined Mr Kumaran’s statement.

[28] There are two fundamental problems with this ground of appeal.
[29] First, the evidence is not “fresh”. Mr Adjei acknowledged in his affidavit that he had told trial counsel about the previous approaches to other banks, including Mr To’s bank. Thus, the evidence was available at trial. Mr Patel told us that he was unaware of the steps taken by trial counsel to investigate the possibility of the evidence being called. It follows that there is no plausible foundation for any allegation of counsel incompetence, and no such allegation was advanced. Effectively, Mr Patel was inviting us to ignore the fact that Mr To’s evidence was not fresh. We are not prepared to do so.
[30] Secondly, we do not accept that Mr To’s evidence would have made any difference to the outcome. The Crown case against Mr Adjei was very strong:

(a) It was not disputed that the ASB statements were forged and were provided to BNZ; the only issue was the identity of the perpetrator/s.

(b) The original statements had been sent to the address at which Mr Adjei was residing, which indicates that Mr Adjei must have been involved.

(c) Two bank officers had given evidence that Mr Adjei, not Mr Kumaran, had presented the offending statements to BNZ and that he was by himself. To counteract that evidence the defence contended that Mr Longo had a motive to lie because he was in league with Mr Kumaran. If that was the case, Mr Rathore must also have been in league with Mr Kumaran. To say the least, the defence proposition was improbable.

(d) There were remarkable similarities between this offending and the 2005 offending.

As against those points, Mr To’s evidence relates to a different time (a little more than one week before the BNZ application) and a different bank. Moreover, while it might indicate that Mr Kumaran was involved we do not consider that this would have gone any distance towards neutralising the allegations of criminal conduct by Mr Adjei.

[31] This ground of appeal also fails.

Third ground of appeal – failure to disclose

[32] It is common ground that the internal bank memorandum was not disclosed before trial and that it should have been.
[33] Mr Patel argued that the “ramping” of the purchase price and the shortcomings in the bank processing reinforced the allegation that Mr Kumaran was a fraudster and that “there was a friendly bank officer”. Counsel claimed that this internal bank memorandum would have provided an additional boost to the defence case.
[34] We disagree. While this information might indicate undesirable conduct on the part of Mr Kumaran and sloppiness on the part of the bank officers, we cannot see that it goes any distance in combating the strong Crown case. Even if it is established that Mr Kumaran was a fraudster, it would not establish that he was the only one. And it is a giant step to equate sloppy bank practice with dishonesty or complicity in dishonesty.
[35] It follows that there is no merit in this ground of appeal.

Result

[36] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [116]

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