Mayer v R [2014] NZCA 216 (4 June 2014)

Last Updated: 10 June 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA100/2014 [2014] NZCA 216
BETWEEN	MALCOLM DUNCAN MAYER Appellant
AND	THE QUEEN Respondent

Hearing:	27 May 2014
Court:	Stevens, Winkelmann and Lang JJ
Counsel:	G N Bradford for Appellant M D Downs for Respondent
Judgment:	4 June 2014 at 3.00 pm

JUDGMENT OF THE COURT

The application for bail is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Following a trial by Judge alone in the District Court, Mr Mayer was convicted of 26 counts of fraud, comprising dishonestly using a document for pecuniary advantage and using a forged document.^[1] He was sentenced by Judge Gibson to a term of 6 years’ imprisonment with a minimum non-parole period of three years.^[2] He seeks bail pending his appeal against conviction and sentence.^[3]

Background

[2] The indictment faced by Mr Mayer related to some 26 separate property transactions.^[4] The first category of offences (counts 1–7) were first in time and alleged criminal conduct by Mr Mayer alone. The second category (counts 8–16) arose out of a broad allegation that Mr Mayer and Mr Turnbull, the co-accused, entered into a conspiracy to defraud Trustees Executors Limited (TEL) using undisclosed sale and purchase agreements and various other associated falsities. These second category charges concerned the same type of scheme and transactions underlying Counts 1–7, laid against Mr Mayer alone.
[3] The third category (counts 17–36) concerned properties bought by Mr Mayer and on sold to Mr Turnbull. The allegation was that Mr Mayer stood to make substantial profits from these transactions, in which Mr Turnbull was complicit. In this category there were a number of transactions in respect of which the underlying false or forged documents had been constructed by Mr Mayer or someone acting on his instruction.
[4] The overall nature of Mr Mayer’s offending was summarised by the judge at sentencing as follows:

[5] ... [E]ssentially, the Crown case involved charges founded on a series of frauds concerning funding for 26 properties purchased using mortgage monies advanced by the complainant, [TEL] and you obtained funding using a double or dummy agreement for sale and purchase process, false income statements in some instances, and the mortgagee was led to believe that the property was being purchased for sums in many instances that were higher than that which you were actually paying for the property.

[6] The true purchaser was concealed by you, or by Mr Turnbull in cases where he was involved, and you assisted in that insofar as he was concerned. The scam involved using dummy purchases and often second agreements, and was undertaken to circumvent TEL’s lending cap, and inflating property prices was undertaken to circumvent TEL’s loan to value ratios.

[7] There was actually nothing unique in this scam. It has certainly been done before and it has been around a while. But the impact on TEL was significant and the victim impact report makes it clear how devastating the effect of these frauds were on that institution, which had been a trust company formed 133 years ago. The financial burden imposed on the owner of the company has been significant. He has had to underwrite a loan from a bank to enable the company to continue and, in the years it took to [sort] this out, there were difficulties for the company. ...

[8] The losses were also significant. “Colossal” would not be a word that would be inappropriate as a description. Capital losses of $19,146,429 are referred to in the victim impact statement, and there were interest losses as well as stress, damage to reputation, and other losses that cannot be truly quantified.

[5] As to the respective culpability of Mr Mayer and Mr Turnbull, Judge Gibson noted:

[23] I accept that Turnbull was involved in many of these but you were a key participant in the frauds that involved him because I do not believe that those frauds could have been undertaken, or certainly undertaken on the scale they were, without your involvement and without the relationship you had developed with TEL who clearly trusted you.

[6] Although Mr Turnbull is described as a co-accused, it seems he left New Zealand in March 2008 before he or Mr Mayer were charged. He has not been interviewed by the Serious Fraud Office. He had not been definitively located by the time of Mr Mayer’s first trial in November 2011.^[5] The position was the same at the start of the second trial in October 2013, such that Mr Mayer was tried in the absence of Mr Turnbull.

The application for bail

[7] Mr Mayer applies for bail, pending determination of his appeal against conviction and sentence. He advances the following grounds in support of that application:

• (a) the strength of his appeal;
• (b) the length of the sentence imposed;
• (c) the length of time that will pass before the appeal is heard; and
• (d) the appellant’s personal circumstances, including an apparent inability to prepare for trial.

[8] Bail is opposed by the Crown.

Applicable principles

[9] Bail pending appeal is governed by s 14 of the Bail Act 2000. Under s 14(1) the Court must not grant bail “unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the case to do so”. The onus is on the applicant for bail to show cause why bail ought to be granted.^[6] This reflects the wellsettled principle outlined by this Court in Ellis v R:^[7]

Admission to bail pending appeal is unusual and only to be granted in exceptional circumstances. The concern is for the overall interests of justice. The starting point is that the applicant has been found guilty and sentenced. Two further factors for special consideration are the apparent strength of the appeal and the element of delay causing injustice.

[10] With respect to the apparent strength of the grounds of appeal, it has been noted by this Court that the determination of the merits of an appeal in post-conviction bail applications is a difficult exercise.^[8] Section 14(3)(a) creates a high threshold: once an offender has been convicted and sentenced, the Court will grant bail pending appeal only in exceptional circumstances.^[9] The requisite strength of grounds of appeal was discussed in Ellis v R:^[10]

... [The] Court in Moananui^[11] accepted that the applicant had an arguable case on the points intended to be advanced in the appeal but concluded that none of them pointed overwhelmingly to the ultimate success of the appeal.

[11] Thus, the prospects of this appeal need to be compelling before they can go in to the balance on the side of granting bail.^[12] It is neither necessary nor appropriate, however, for this Court to engage in extensive analysis of the merits of an appeal in an application for bail such as this.^[13]

Discussion

[12] Mr Mayer advances three grounds in support of his appeal against conviction. The first is alleged prosecutorial misconduct, in the form of purported non-disclosure by the prosecution of information relevant to the whereabouts of Mr Turnbull. The second ground contends that the verdicts are against the weight of evidence. We will deal with these grounds and then address a concern raised recently at hearing by the appellant concerning his ability to prepare for the appeal adequately whilst in prison.

Alleged non-disclosure

[13] The substance of this ground is that the prosecution knew the whereabouts of Mr Turnbull prior to the first aborted trial, and therefore prior to the second trial. We were told emails disclosing the prosecutor’s knowledge of this information were inadvertently sent to trial counsel shortly before the second trial.^[14] This point was raised by counsel before the start of trial and the Judge apparently observed that the information should have been disclosed to the defence.
[14] Counsel for the defence seems to have been aware before the start of the second trial that Mr Turnbull was in Singapore at an identified address. We asked Mr Bradford, as trial counsel, about this. He said that by the time he received information as to Mr Turnbull’s whereabouts it was already more than 18 months old. However he accepted that he took no steps to make enquiries to locate Mr Turnbull. He explained that the issue was raised with the Judge by talking through the issues arising from the alleged non-disclosure, but no further application, and, in particular, no application for an adjournment was made.
[15] The submission made before us is that, if disclosure had occurred in a timely way, the defence would have made efforts to locate Mr Turnbull, to have him present at trial; either by asking the authorities to extradite him, or at the least by requiring him to give evidence for the defence by video-link. This could have supported Mr Mayer’s defence, which was that any fraud perpetrated was solely that of Mr Turnbull and not that of Mr Mayer. This is of course relevant only to the second and third categories in respect of which Mr Mayer was found guilty of using forged documents.
[16] Further, Mr Mayer submits that the initial seven counts on which he was found guilty were arrived at by the Judge’s reasoning that Mr Turnbull was engaging in similar illegal transactions, indicating a pattern of conduct. The contention is that the Judge reasoned backwards from the findings on the counts in the second and third categories, relating to both Mr Mayer and Mr Turnbull, applying his conclusions to the charges against Mr Mayer alone. In any event, Mr Turnbull’s presence, either at trial or through giving evidence, would therefore have materially assisted the defence.
[17] On a preliminary basis we do not consider that this first ground of appeal is strong. It faces a number of hurdles. The first is that the relevant information concerning Mr Turnbull’s whereabouts was in fact disclosed to defence counsel prior to the second trial. Second, defence counsel accepted that no effort was made to locate Mr Turnbull or to have him available to give evidence on Mr Mayer’s behalf. Third, although the matter was drawn to the attention of the Judge, no application for an adjournment was made.
[18] In any event, Mr Mayer was found guilty on the first seven counts in respect of which criminal liability was alleged solely against him.^[15] Mr Turnbull had no role in any of the transactions in that first category. Neither do we see any evidence in the reasons for the verdict to suggest the Judge reasoned backwards. Moreover, when dealing with the counts against Mr Mayer and Mr Turnbull together in the second and third categories, the Judge had no trouble in finding Mr Mayer guilty for his role in the offending based on the evidence before him.^[16] This was assessed in light of the offending overall, Mr Mayer’s role in it, the relationship he established with TEL and the culpability of Messrs Mayer and Turnbull respectively.
[19] On the material before us it is difficult to see how the presence of Mr Turnbull would have affected the outcome of the trial.^[17] Had the defence sought to call Mr Turnbull to give evidence on Mr Mayer’s behalf, a number of evidential and procedural difficulties would have arisen.^[18]
[20] For the above reasons we are satisfied that the first ground advanced in support of the application for bail does not point overwhelmingly in favour of the prospects of a successful appeal, thereby supporting bail.

Weight of evidence

[21] The second ground of appeal appears to be a verdict against the weight of the evidence. It is not particularised in the notice of appeal. It is difficult to assess the merits of this ground in the absence of particulars. This does not assist Mr Mayer in the context of bail.

Preparation for appeal hearing

[22] Mr Mayer is currently in Springhill Prison. He complains that he had been deprived of access to a computer which he needs for the preparation of his defence. We were referred to documentary confirmation that his recent request for access to a computer had been declined. However this was on the basis that the Corrections Service Manager had said that relevant files could be brought into the prison and stored. These would be provided to him to work on, one box at a time.
[23] Mr Bradford submits that he will only have limited access to Mr Mayer by visiting the prison. Even if he takes a computer and electronic copy of the file on such visits, there will only be so much that can be done given the fact that visits are limited to Monday and Tuesday of each week and are for only up to two hours.
[24] Prison managers have obligations under the Corrections Regulations 2005 to assist prisoners in relation to preparation for legal proceedings.^[19] There is no suggestion at the present time that the relevant prison managers are not complying with these obligations. Nor is there any suggestion of non-compliance with the provisions of the Corrections Act 2004, which provide for prisoners to have access to lawyers and the ability to send and receive mail and to make outgoing telephone calls.^[20]
[25] The material before us suggests that the prison managers involved are complying with their obligations and are doing what can be done to facilitate Mr Mayer’s preparation for the appeal hearing. Not unusually for a fraud case, there are 16,500 pages of disclosure, plus a further 2,000 pages of exhibits, briefs, interview transcripts and miscellaneous documents. Overall the file comprises some 50 Eastlight files. There were approximately 1,800 pages of notes of evidence from the second trial.
[26] Given the nature of the documentation involved, we would anticipate that the prison managers would, in the future, do what can reasonably be done to ensure that Mr Mayer is able to prepare properly for the hearing.

Other matters

[27] Under s 14(3)(c) of the Bail Act we must take into account the likely length of time that will pass before the appeal is heard. It seems that counsel for the applicant has been offered fixtures in both July and August 2014. These were not suitable to counsel. Mr Bradford explained that a fixture had been allocated for early November. We do not consider that a delay of this nature is persuasive in demonstrating exceptional circumstances in favour of a grant of bail.
[28] Finally we refer to the appeal against sentence. It is advanced on the basis that the sentence imposed was manifestly excessive and there was a lack of opportunity to make submissions on the appropriate minimum period of parole. We consider it is inappropriate to endeavour to assess the sentence appeal at this stage. However there is no basis upon which it could be said to operate overwhelmingly in favour of a grant of bail.

Result

[29] For the above reasons we are not satisfied that the applicant has discharged the onus on him to show that it is in the interests of justice to grant bail.
[30] The application for bail is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Mayer DC Auckland CRI-2010-004-8862, 20 December 2013; Crimes Act 1961, ss 228(b), 257(1)(a) and 66(1).

^[2] R v Mayer DC Auckland CRI-2010-004-8862, 18 February 2014.

^[3] Bail Act 2000, s 55.

^[4] Giving rise to a total of 36 counts, 10 of which were laid as alternatives. All 36 counts related to the same two types of offending alleged: dishonestly using a document and forgery.

^[5] The first trial was adjourned several times and was ultimately aborted in July 2012.

^[6] Section 14(2).

^[7] Ellis v R [1998] 3 NZLR 555 (CA) at 560, affirmed in Iti v R [2012] NZCA 307 at [7].

^[8] Hosking v R [2012] NZCA 263 at [6].

^[9] Iti v R, above n 7, at [7].

^[10] At 560.

^[11] Moananui v R (1984) 1 CRNZ 231 (HC).

^[12] Hosking v R, above n 8, at [5].

^[13] R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R, above n 7.

^[14] The information was inadvertently provided to defence counsel on 24 June 2013 (some four months prior to the second trial) in a pack marked “Privileged Material”.

^[15] R v Mayer, above n 1, at [91]–[178].

^[16] At [184]–[280].

^[17] Had Mr Turnbull been extradited he would have been an “associated defendant” in terms of the Evidence Act 2006, s 73 and would not have been compellable as a witness at Mr Mayer’s behest.

^[18] If Mr Turnbull had agreed to give evidence on behalf of the defence he would have been entitled to refrain from answering questions that could incriminate him as per the Evidence Act, s 60.

^[19] Corrections Regulations 2005, sub-regs 193(2)(a) and (b).

^[20] Corrections Act 2004, subs 69(1)(a) and ss 74, 76 and 77.