Myles v R [2012] NZCA 143 (5 April 2012)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Myles v R [2012] NZCA 143 (5 April 2012)

Last Updated: 11 April 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA648/2011 [2012] NZCA 143

BETWEEN GILBERT COLIN MYLES Appellant

AND THE QUEEN Respondent

Hearing: 27 March 2012

Court: Randerson, Keane and Lang JJ

Counsel: J N Bioletti for Appellant M J Ruffin for Respondent

Judgment: 5 April 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Lang J)

[1] Mr Myles faced a charge in the District Court of conspiring with Robert Briggs to use documents dishonestly with intent to obtain a pecuniary advantage. He also faced a charge under s 117(e) of the Crimes Act 1961 of wilfully attempting to obstruct the course of justice.
[2] After a lengthy trial before Judge Joyce QC sitting without a jury, Mr Myles was acquitted on the conspiracy charge but convicted on the charge of wilfully attempting to obstruct the course of justice.[1]
[3] Mr Myles appeals against conviction. He contends the Crown failed to prove all of the elements necessary to establish the charge of wilfully attempting to obstruct the course of justice.
[4] Although Mr Myles was acquitted on the conspiracy charge, the events that gave rise to that charge have some bearing on the issues raised in the appeal against conviction on the obstruction charge. For that reason we propose to set out the background to both charges.

Background to the charges

The conspiracy charge

[5] Mr Myles was the director of companies called Dunfermline Holdings Limited (“Dunfermline”) and Mercator Libris Limited (“Mercator”). Both companies were wholesalers of books.
[6] The Crown alleged that Mr Myles was party to a conspiracy with Mr Robert Briggs. Mr Briggs was the general manager and principal officer of a registered charitable trust called the Actives Charitable Trust (“Actives”). Actives derived substantial income through gaming machines it was authorised to operate under licences initially granted by the Department of Internal Affairs under the Gaming and Lotteries Act 1977 and, later, the Gambling Act 2003. Actives distributed a significant proportion of its income through grants it made to charities and non-profit organisations.
[7] The Crown alleged that Mr Briggs and Mr Myles were parties to an arrangement under which Actives made grants to another charitable trust called the Southern Stars Charitable Trust (“Southern Stars”). Southern Stars was controlled by a Mr Brendon Cook, and it was involved in organising charity events for children. It gave away souvenirs, including books, to the children who attended these events. Southern Stars purchased the books from Mr Myles’ companies using the grants it received from Actives. This resulted in Southern Stars paying just over $490,000 to Dunfermline and Mercator.
[8] The Crown contended the arrangement was dishonest, because Southern Stars purchased the books from Mr Myles’ companies at inflated prices. The Crown case was that Mr Myles paid “kickbacks” to Mr Briggs for arranging the grants to Southern Stars. Mr Briggs did not receive any payment directly from Mr Myles or his companies. Instead, the Crown alleged that Mr Myles arranged for payments totalling $68,546.89 to be made to several of Mr Briggs’ creditors.

Wilfully attempting to obstruct the course of justice

[9] The charge of wilfully attempting to obstruct the course of justice was laid as a result of events that occurred in October 2007, after the Serious Fraud Office (SFO) had commenced an investigation into Mr Briggs’ activities.
[10] Mr Rhys Metcalfe, an investigator employed by the SFO, visited Mr Myles at his home on 16 October 2007. Mr Metcalfe went there to serve a notice on Mr Myles under s 9 of the Serious Fraud Office Act 1990. The notice required Mr Myles to produce the following documents to the SFO on or before 23 October 2007:

1. All documents in your possession or under your control relating to the sale of merchandise (including, but not limited to, books) to Southern Stars Charitable Trust, by you or any entity with which you are (or have been) associated. Such documents should include, but not be limited to, invoices, contracts, correspondence, emails, diary entries, receipts, bank statements and cheque butts. Documents sought in this paragraph include, but are not limited to, all documents relating to negotiations that took place leading up to each sale, documents relating to any sale and documents referring to the sale/s (including terms of payment) after the sale/s had taken place.
   
2. All documents in your possession or under your control relating to payments made by you, or any entity with which you are (or have been) associated, to (or on behalf of) Mr Robert Briggs, or any entity with which he is (or has been) associated. Such documents should include but not be limited to, invoices, contracts, correspondence, emails, diary entries, bank statements, receipts and cheque butts.

[11] After looking at the notice briefly, Mr Myles told Mr Metcalfe he had some documents he wanted Mr Metcalfe to see. Mr Myles said these confirmed that the monies he had paid to Mr Briggs’ creditors were by way of a loan to Mr Briggs. Mr Myles then produced a manifold book. This purported to contain handwritten notations recording sums advanced to, and repaid by, Mr Briggs. The first transaction was dated in November 2004. Mr Myles told Mr Metcalfe he had made the loans so that Mr Briggs could pay bills owing to legal advisers he had retained after the Department of Internal Affairs had begun an investigation into Actives’ affairs in 2004.
[12] Mr Metcalfe did not take the manifold book with him when he left Mr Myles’ house on 16 October 2007. Instead, Mr Metcalfe told Mr Myles to be sure to include the book in the documents he provided to the SFO when he complied with the notice.
[13] Mr Myles subsequently obtained an extension of time within which to comply with the notice. He then provided the SFO with several documents on 25 October 2007. These included the manifold book he had shown to Mr Metcalfe on 16 October 2007, and two other documents that are relevant for present purposes. The first was a letter to Mr Briggs dated 6 November 2004 on Dunfermline letterhead. The letter was signed by Mr Myles, and read as follows:

After we met for coffee the other day and you explained your difficulty in finding the money to pay Peter Williams and others for their work on your case, I decided that I would offer you a loan, because I recommended Peter and I know that he is expensive, but he is also the best as far as I am concerned. I told Peter I believe you are honest and that is my opinion.

I am prepared through Dunfermline, to lend you some money towards your legal costs, which could be up to $10,000 a month, (I don’t know). Dunfermline will pay the invoices as required because our company accounts are audited and we need to account for all monies going in and out.

Please remember that I can only pay up to $50,000 and that will be pushing it. I will need you to pay back at least $200 a week, while the money is owed. Also, Dunfermline will need some security and I suggest that you agree to transfer your family interests in NR1222 Limited to Dunfermline and if you agree, I would like this to be done as soon as possible, in case you get any bills which Dunfermline needs to pay. If you don’t agree to this, I could take security over one of your cars, but NR1222 would be better, because the company has a future, if the law relating to natural products changes.

Please let me know what you decide.

[14] The second document was dated 4 April 2005, and was signed by Mr Briggs. It stated:

I, ROBERT ANTHONY BRIGGS

Do hereby agree:

1. That I will transfer all the Briggs Family interests in NR1222 Limited to Dunfermline Holdings Limited In Consideration Of payments by Dunfermline Holdings Limited towards my legal expense and that myself and Jan Briggs will resign as directors of the company.
2. That I will pay to Dunfermline Holdings Limited the sum of $200 a week in reduction of any money lent to me by Dunfermline towards such legal expenses, until the debt is repaid in full.

Dated the 4th day of April 2005

“R A Briggs”

ROBERT ANTHONY BRIGGS

[15] Mr Myles attended a voluntary interview at the offices of the SFO on the following day. The interview was conducted by Mr Metcalfe and by another SFO investigator, Mr Hudson.
[16] During the first part of the interview, Mr Metcalfe asked Mr Myles about his association with Mr Cook and Mr Briggs. Later in the interview, Mr Metcalfe asked Mr Myles a series of questions about the handwritten notations in the manifold book. The questions sought Mr Myles’ confirmation that he had completed the notations in the manifold book at the time the transactions in question occurred. Mr Myles confirmed that was the case. He also said that, where the manifold book recorded a repayment by Mr Briggs, he had torn out the top page and handed it to Mr Briggs as a receipt. This left only a carbon copy of the document in the manifold book.
[17] Unknown to Mr Myles, Mr Metcalfe knew this explanation could not be correct. After receiving the documents from Mr Myles the previous day, Mr Metcalfe had made enquiries to ascertain how long the book may have been in Mr Myles’ possession. These enquiries established conclusively that Mr Myles had used his credit card to purchase the manifold book from a stationery shop on 11 October 2007. This obviously meant he could not have made notations in the manifold book prior to that date.
[18] When Mr Metcalfe confronted Mr Myles with the fact that he had only recently purchased the manifold book, Mr Myles changed tack. He said he had originally recorded the transactions contemporaneously in another book, and that receipts had been torn out of that book and handed to Mr Briggs as he made repayments. He said he had transcribed the notations from the original receipt book into the manifold book recently because the original book had been damaged. He said he had thrown the original book away.
[19] Later in the interview, Mr Myles changed tack again. On this occasion he told the investigators he had been pocketing the repayments he had received from Mr Briggs, and spent them betting on horse races. The following exchange then occurred:

HUDSON If you let me ask the question before you answer. Why, earlier in the interview, did you when we were going through that receipt book say yes that was all written at the time and I gave him a receipt every time that he came in?

MYLES Because, I’ll tell you why, because a friend of mine, he just got hit on by you guys and it cost him 1 million to defend himself and he got o... he got off, he was innocent. And another friend of mine you people are looking at, he tried to commit suicide a few weeks ago and I got told that its like the Gestapo that, the, that’s why they're getting wound up. That’s what I got told by these people. Now the, it scared me, scared, really, really scared me and I said that to you the other day, I said about the publicity. So, that’s

HUDSON So how does that explain you going out recently, purchasing a receipt book and then proceeding to tell us

MYLES Because, because what the, what I had been told is that you’ve got to have some sort of evidence and I didn’t have any

HUDSON Who told you that?

MYLES Eh?

HUDSON Who told you that?

MYLES Lawyers. Prominent lawyers. They said you’ve got to have evidence.

[20] A short time later, Mr Myles changed his story yet again. He said he had originally recorded details of the loan repayments on scraps of paper, but had recently decided to transcribe the transactions into the manifold book so that he had details of them for his own records.
[21] The SFO considered Mr Myles had deliberately attempted to mislead it when he created the entries in the manifold book and initially maintained they were correct during the interview. He was therefore charged with wilfully attempting to obstruct the course of justice.
[22] A significant part of the argument for Mr Myles on appeal is that the Judge’s reasoning in relation to the conspiracy charge was such that he could not logically go on to find Mr Myles guilty on the obstruction charge. For that reason it is necessary to briefly outline the Judge’s reasoning in relation to the conspiracy charge.

The Judge’s reasoning on the conspiracy charge

[23] The Judge relied on several factors in deciding that the Crown had failed to prove the conspiracy charge to the required standard.
[24] First, the Crown could not establish any connection between Mr Myles and Mr Briggs in relation to important aspects of the alleged arrangement. It could not establish any connection, for example, between Mr Briggs and Mr Myles in relation to the supply of books to Southern Stars. All discussions regarding that issue were between Mr Myles and Mr Cook. Similarly, there was no evidence of any contact between Mr Myles and Mr Briggs in relation to the grants Southern Stars obtained from Actives. All contact in relation to that issue was between Mr Briggs and Mr Cook. The concept of giving away books to children at charity functions had likewise come from Mr Cook, and not from Mr Myles or Mr Briggs.
[25] The Judge also considered the evidence fell short of establishing that Mr Myles was selling the books to Southern Stars at inflated prices. Sales generally occurred at prices close to the publisher’s recommended retail price. In addition, there was no apparent connection between the timing and the amount of payments Mr Myles made to Mr Briggs’ creditors, and the purchase of books using the grants Southern Star received from Actives.
[26] Mr Myles had also maintained throughout the interview with the SFO investigators that he had not known Southern Stars was funding the purchase of the books using grants from Actives until very late in the piece. He had been under the impression that Southern Stars had conducted telemarketing campaigns to obtain the necessary funding to pay for the books. There was nothing to contradict Mr Myles’ assertion on this point.
[27] The Crown had also placed significant weight on the letter dated 16 November 2004 and the document dated 4 April 2005.[2] It contended Mr Myles had created both documents recently in order to support the impression given by the manifold book, namely that Mr Myles had advanced monies to Mr Briggs by way of loans rather than as a reward for arranging the grants by Actives to Southern Stars.
[28] The Judge rejected this submission. He also declined to treat the creation of the manifold book as a step taken by Mr Myles to cover up the existence of a conspiracy. In this context he said:[3]

(j) Mr Myles’ “cover up” steps in October 2007 (which could not be held against Mr Briggs anyway) and his closer to contemporaneous events signing off of accounts such as to leave Mr Briggs ‘non-apparent’ could have been for a host and variety of reasons unconnected with concern to cover up a conspiratorial arrangement: I here bore in mind that

(k) There was obviously something that led to Mr Myles being uncomfortable about others seeing signs of monies going to Mr Briggs; but

(l) The sheer insufficiency (in criminal standard of proof terms) of evidence that Mr Myles and Mr Briggs were plotters together and the Crown’s inability to make (as I find to be so) a sufficient case for the conclusion that the November 2004 letter and the April 2005 reply were themselves fabrications, left no more than (not to be visited) room for speculation as to why Mr Myles suffered that discomfort.

[29] Taking all of these matters into account, the Judge found the Crown had failed to establish the existence of a conspiracy between Mr Myles and Mr Briggs.

The issue on appeal

[30] Counsel for Mr Myles submits that the Judge’s conclusions in relation to the conspiracy charge also removed an essential premise underpinning the Crown case on the charge of attempting to obstruct the course of justice. This was that, when Mr Myles created the manifold book and asserted it to be genuine during the first part of the SFO interview, he was deliberately attempting to cover up the existence of a conspiracy between himself and Mr Briggs.
[31] This argument relies principally on the Judge’s conclusion[4] that Mr Myles’ actions in October 2007 “could have been for a host and variety of reasons unconnected with a concern to cover up a conspiratorial arrangement”. Counsel for Mr Myles submits that once the Judge reached that conclusion, he could not logically be satisfied beyond reasonable doubt that Mr Myles intended to obstruct the course of justice.
[32] We consider the deficiencies the Judge identified in relation to the conspiracy charge were more than sufficient to result in the dismissal of that charge. The evidence suggested that Mr Briggs and Mr Myles were never involved in any arrangement or conspiracy of the type suggested by the Crown. For that reason, the Judge was technically correct when he said that Mr Myles’ actions were likely to have been motivated by matters other than a concern to cover up “a conspiratorial arrangement”.
[33] The Judge’s reasoning in relation to the obstruction charge makes it clear, however, that he did not regard Mr Myles’ actions as being consistent with those of an innocent person. He said:

[345] I turn to count 12. Given the parameters laid down in McMahon,[5] the evidence against Mr Myles relating to this count (the nature of which has previously adumbrated), and his admissions, the case against him here was in my view incontestable.

[346] It could not be a defence for Mr Myles that he only acted as he did because, in the first instance, he panicked. Panic was, and is, nothing to the point. A claim of panic cannot serve in justification of a criminal deceit.

[347] What was to the point and inescapable – something abundantly clear – was that by creating the falsehood that was the manifold book and going on deliberately to present that to the Serious Fraud Office he sought to deflect the proper course of their inquiries.

[348] Whatever initially led to (and panic was the proffered by counsel suggestion) Mr Myles’ actions, they fell neatly within the four corners of s 117(e) of the Crimes Act. And, as I have concluded, those actions of Mr Myles manifested a clear intention to obstruct the course of justice.

[349] There was simply no tenable (even in reasonable possibility terms) view of the facts that gave rise to this charge such as was capable of withstanding the force of what comprised a text book type set of facts for a successful prosecution of this kind. It fell squarely within sub-para (e) of para [87] of McMahon and left me sure of guilt.

[34] The real issue is not whether the Judge’s conclusion on the conspiracy charge meant that an acquittal was bound to follow on the obstruction charge. It is whether, even if Mr Myles was not party to a conspiracy with Mr Briggs, the Crown nevertheless established the elements necessary to prove the charge of wilfully attempting to obstruct the course of justice.

Did the Crown establish the elements necessary to prove the charge of wilfully attempting to obstruct the course of justice?

[35] As already noted, the obstruction charge had two aspects. First, Mr Myles created the entries in the manifold book so that they appeared to be contemporaneous with underlying transactions. Secondly, he maintained the entries were contemporaneous during the initial part of the SFO interview.
[36] It is not a criminal offence, however, to create a post-dated record of earlier events. Nor is it necessarily an offence to tell others that the record was created contemporaneously with those events. The Crown case, however, was that Mr Myles committed an offence against s 117(e) of the Crimes Act 1961 because he did those acts for the express purpose of misleading the SFO in the investigation it was undertaking into Mr Briggs’ affairs.
[37] The issue of whether or not an act committed during the course of a police investigation may amount to a wilful attempt to obstruct the course of justice has been considered by the High Court of Australia in R v Rogerson,[6] and by this Court in R v Meyrick[7] and McMahon v R.[8]
[38] In Rogerson, the accused were charged with conspiring to pervert the course of justice. They had concocted a false story to deflect or frustrate a likely police investigation into the source of a large sum of money that one of the accused, a police officer, had deposited into a bank account opened under a fictitious name. At the time the accused concocted the story, no court proceedings were in train and no police investigation had commenced.
[39] Brennan and Toohey JJ held that, although a police investigation does not form part of the course of justice, nevertheless an act designed to mislead the police during an investigation may amount to an attempt to pervert or obstruct the course of justice. In this context they said:[9]

Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and if done with intent to achieve that result, amounts to an attempt to pervert the course of justice. (Emphasis added)

[40] In dealing with the issue of intent, Brennan and Toohey JJ said:[10]

When the Crown must rely on inference to prove the intent of alleged conspirators to pervert the course of justice by the doing of an act which tends to mislead the police in their conduct of an investigation into a possible offence, the evidence must be capable of supporting at least:

(1) an inference that the conspirators believed that the police might invoke the jurisdiction of a court or of some competent judicial authority or might invoke that jurisdiction unless the relevant act deflected them; and

(2) a further inference that the conspirators either knew that the relevant act would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the act should have that effect.

It is not sufficient for the Crown to prove merely an intention to deceive the police.

[41] This Court adopted the same reasoning in Meyrick and McMahon. In Meyrick, the Court emphasised that it is not sufficient for a person to merely attempt to mislead the police during the course of an investigation. In a passage cited subsequently in McMahon,[11] the Court said:[12]

The “course of justice” undoubtedly includes the administration of justice by publicly established tribunals, see, for instance, Rogerson. It is sometimes said that the “course of justice” extends to cover police investigations. There is no doubt that criminality attaches to actions which have the tendency (and are intended) to adversely affect court proceedings (or indeed prevent such proceedings being commenced) even though those actions are in the context of police investigations, and occur prior to proceedings being commenced ... But the fact remains that the tendency and intention which are critical must be addressed to actual or contemplated proceedings before constituted tribunals, a point which emerges clearly from Rogerson.

[42] In McMahon, the Court summarised the position as follows:[13]

(a) The object of the offence of attempting to obstruct or pervert the course of justice is to protect the process and procedures of the courts (and other tribunals).

(b) It is not necessary to prove that the course of justice was in fact perverted or obstructed. It is merely necessary to prove that the act had a tendency to do so and that the accused intended to pervert the course of justice (ie court or tribunal proceedings).

(c) It is not necessary for court (or tribunal) proceedings to have been actually instituted. It suffices that there is an act which has a tendency to prevent or obstruct a prosecution which an accused contemplated might follow with an intention on the part of the accused to pervert the course of justice.

(d) The course of justice has begun at the time at which an arrest warrant is issued. Thus, an attempt to interfere with the execution of an arrest warrant, with the knowledge that such a document has been invoked by the jurisdiction of a court, will fall within the scope of the offence.

(e) Police investigations in themselves do not form part of the course of justice. However, an act which has a tendency to deflect the police from prosecuting a criminal offence or adducing evidence of the true facts is an act which tends to pervert the course of justice if undertaken with this purpose in mind. (Emphasis added)

(f) The fact that an accused may not have been convicted on an underlying charge is not relevant to a charge under s 117(e). Neither is the fact that a person assisting an accused (or interfering with evidence) believes an accused to be innocent. The courts have the responsibility for judging the case and not the accused or any person assisting the accused.

[43] As the passage set out above at (c) demonstrates, it is not necessary for the accused to know that charges will definitely be laid as a result of the investigation. It is sufficient if he or she appreciates that charges “might” be laid.
[44] In the context of the present case, Mr Myles could therefore be guilty of attempting to obstruct the course of justice if he appreciated that the SFO investigation might result in criminal charges being laid, against himself and/or Mr Briggs, and he acted in a manner having a tendency either to prevent that occurring or to deflect the SFO from adducing evidence of the true facts. He would only be guilty, however, if he intended his actions to achieve either or both those results.
[45] Although the Judge described the charge as “incontestable”, he did not address these issues. It is therefore necessary for us to undertake that analysis.

Did Mr Myles appreciate that the SFO investigation might result in criminal charges being laid?

[46] It is clear from Mr Myles’ comments during the SFO interview that he was aware well before Mr Metcalfe’s arrival at his house on 16 October 2007 that the SFO was investigating payments made to and by Mr Briggs. Mr Myles also knew that his actions were likely to form part of the SFO investigation. In addition, he must have known that the issue of whether or not the payments he had made to Mr Briggs were loans or gifts was important. That is why he purchased the manifold book and set about making the post-dated entries in it.
[47] The very fact that the SFO was involved in such an investigation, and had issued a formal notice to produce documents, would alert most reasonable people to the possibility that criminal charges might subsequently be laid. Mr Myles was obviously aware of that possibility, because he told the SFO investigators[14] about a friend who had “got off” after spending a million dollars to defend himself following an SFO investigation. The logical inference to be drawn from this is that Mr Myles decided to create and produce post-dated records to the SFO in order to avoid the prospect of facing charges himself, or in an attempt to deflect the SFO in their investigation of the role of Mr Briggs in the transactions.
[48] The evidence was therefore sufficient, in our view, to establish that Mr Myles appreciated that the SFO investigation might result in criminal charges being laid against himself and/or Mr Briggs.

Did Mr Myles’ actions have a tendency to deflect the prospect that charges might be laid or to change the evidence?

[49] Mr Myles obviously knew the SFO had a particular concern as to whether payments he had made to Mr Briggs were loans or gifts. This flows from the following exchange in the interview on 26 October 2007:

METCALFE Well now I guess we’ll cut to the chase now, did you or anyone at Dunfermline or Mercator Libras [sic] make any payments to or on behalf of Robert Briggs at any stage?

MYLES Get, get a bible out. I honest to god, I have never ever given Robert Briggs any money. Why should I? If you

METCALFE The documents, the documents you provided us with yesterday in answer to the Section 9 Notice set out a number of what are documented as loans.

MYLES Yes they are loans.

METCALFE So, so, so what I’m saying is

MYLES Are you [inaudible] that, sorry, are you [inaudible]

METCALFE Payments I’m asking, not, not gifts or anything, I’m just saying have you made payments, these records you’ve provided seem to show payments.

MYLES Oh that’s different. Yes. They’re loans, sorry, can I retract

HUDSON So payments to Robert Briggs or

MYLES I didn’t pay him anything

[50] Mr Myles’ concern that the SFO might view the payments he had made to Mr Briggs as gifts no doubt prompted him to produce the post-dated entries demonstrating that the payments to and from Mr Briggs related to loans and not gifts. It also suggests Mr Myles had a reasonable idea of the concerns that the SFO held in relation to the payments he had made to Mr Briggs.
[51] If the SFO accepted the entries as being genuine, the prospect that Mr Myles would face charges was clearly diminished. The SFO would have no option but to accept that Mr Myles had been recording payments to and from Mr Briggs as they occurred. In addition, the records supported his explanation that the payments were loans and not gifts. Mr Myles’ actions therefore had the tendency to prevent charges being laid.
[52] At the very least, his actions had a clear tendency to deflect or prevent the SFO placing the true evidence before the Court if charges were ultimately laid. Mr Myles would be able to rely on the entries as providing support for his explanation regarding the true nature of the payments to and from Mr Briggs.

Did Mr Myles intend his actions to prevent charges being laid or to change the evidence available to the Court?

[53] There can be no doubt that Mr Myles’ actions were deliberate and calculated. He knew he was creating and producing documentary evidence that did not previously exist. Once confronted with the fact that the SFO had discovered the true position, Mr Myles frankly conceded he had created the entries in the manifold book because others, including lawyers, had told him the SFO would require evidence of his dealings with Mr Briggs.
[54] The only logical conclusion we can reach is that Mr Myles intended the consequences of his actions. He intended his acts to persuade the SFO not to lay charges or, if charges were laid, he intended to create evidence he could use to defend them. Either way, his intention was to act in a manner that obstructed the course of justice.

Conclusion

[55] For these reasons we are satisfied that the Crown established all of the elements necessary to prove the charge of wilfully attempting to defeat the course of justice. The Judge was therefore entitled to find Mr Myles guilty on that charge.

Result

[56] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Briggs DC Auckland CRI-2008-004-19028, 24 June 2011.
[2] Set out at [13] and [14] above.
[3] R v Briggs, above n 1 at [344].
[4] Set out at [28](j) above.
[5] McMahon v R [2009] NZCA 472.
[6] R v Rogerson [1992] HCA 25; (1992) 174 CLR 268.
[7] R v Meyrick CA 513/04, 14 June 2005.
[8] McMahon v R, above n 5.
[9] R v Rogerson, above n 6 at 283-284. Mason CJ agreed with these observations at 279.
[10] Ibid, at 284.
[11] McMahon v R, above n 5 at [50].
[12] R v Meyrick, above n 7 at [42].
[13] McMahon v R, above n 5 at [87] (footnotes omitted).
[14] In the passage set out above at [19].