Baig v R [2022] NZCA 36 (4 March 2022)

Last Updated: 8 March 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA152/2021 [2022] NZCA 36

	BETWEEN	MIRZA SAADAT BAIG Appellant
	AND	THE QUEEN Respondent

Hearing:	17 February 2022
Court:	Kós P, Peters and Palmer JJ
Counsel:	J M Grainger for Appellant M R L Davie for Respondent
Judgment:	4 March 2022 at 2.30 pm

JUDGMENT OF THE COURT

1. The appellant’s application to adduce fresh evidence is granted.
2. The respondent’s application to adduce fresh evidence is granted.

100. The appeal against conviction is dismissed.

4. The appeal against sentence is allowed.
5. The reparation order is quashed and remitted to the District Court for redetermination.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

• [1] Two car dealers share a lot. A jury found that one, the appellant, fraudulently used a vehicle belonging to the other to obtain $20,308 from a finance company, pretending that he had sold it to a third party. In fact, the vehicle simply remained on the lot. Eventually the finance company repossessed and sold it. For $4,500. Both the original owner and the finance company were out of pocket.
• [2] The appellant was convicted of forgery and dishonestly using a document.^[1] He was sentenced to four and a half months’ home detention with six months’ post‑detention conditions.^[2] The Judge assessed the value of the vehicle as $17,995 and made a reparation order in that amount.^[3]
• [3] The appellant says fresh evidence casts doubt on the credibility of the owner, such that the conviction should be set aside. He also says the Judge was wrong to order reparation in that amount.

Background

• [4] The Crown case, found proved beyond a reasonable doubt by the jury, was as follows.
• [5] The appellant was the director of Milestone Motors Ltd, an Otahuhu motor vehicle dealership. He entered an arrangement with a Mr Bandesha, who was in the same line of business, to share the appellant’s sales yard. Mr Bandesha traded as Milestone Motorz Ltd — with a “z”. By March 2017, Mr Bandesha had approximately 30 cars at the lot, and more coming.
• [6] Mr Bandesha’s company imported the vehicle in question, a Toyota Estima minivan, from Japan. AutoHub, a shipping firm, issued Milestone Motorz with an invoice for a total of $2,104.05 on 8 February 2017. This was a key document at the trial. Under the heading, “CUSTOMS CHARGES (Exchange Rate 79.24)”, the invoice states “FOB ¥350,000”. The Customs GST component of the invoice was $805.05.
• [7] The vehicle was taken to the lot where, by and large, it remained until it was repossessed in November 2017.
• [8] On 11 May 2017, the appellant and a Mr Harnil Dave submitted a loan application to Finance Now Ltd seeking $17,790 to fund purchase of the vehicle. Mr Dave was an employee of first Mr Baig and then Mr Bandesha. The application was presented jointly by the appellant’s company (as vendor) and a Mr Syed (as purchaser, for $15,995 including GST). Mr Syed was an associate of both the appellant and Mr Bandesha. His signature was forged on the application.
• [9] Finance Now accepted the application the same day and paid $20,308.16 to the appellant’s company’s ASB bank account. The sole signatory of that account was the appellant. Finance Now registered a security interest over the vehicle.
• [10] To service the loan, payments were made from the BNZ bank account of a Mr Mansoor Al Kaleefa, one of the appellant’s former customers. Mr Al Kaleefa had not given permission for his account to be used. Payments were made from May 2017 to July 2017. Then Mr Al Kaleefa discovered the payments and instructed the bank to stop them.
• [11] In August 2017, Mr Bandesha discovered what had happened when he was about to sell the car to someone else. Mr Syed made enquiries, found the vehicle had been registered to him and that finance was owing on it. Finance Now enforced its security over the vehicle. It was sold at a public auction in December 2017 for $4,500.
• [12] On 30 October 2018, police interviewed the appellant. He said that Mr Bandesha asked him for the money that was paid into Milestone Motors’ account and he had handed the money over to Mr Bandesha in cash.
• [13] The appellant was charged with forgery and dishonestly using a document to obtain a pecuniary advantage. Mr Dave was charged with using a document to obtain a pecuniary advantage only. Both were found guilty of those charges at a jury trial in November 2020.
• [14] Mr Bandesha gave evidence at trial. He was referred to the AutoHub invoice (see [6] above) and appears to identify the “FOB ¥350,000” figure as the purchase price paid to the supplier. At the stated exchange rate, that would equate to $4,417. The topic was not pursued further.

Events post-trial

• [15] Mr Bandesha’s victim impact statement stated, “[p]urchasing the vehicle, auction fee, compliance costs, parts and shipping the vehicle cost me approximately $15,000. The final market value of the vehicle was $17,995.”
• [16] In February 2021, Judge Large sentenced the appellant to four and a half months’ home detention with six months’ post-detention conditions and ordered reparation of $17,995 be paid to Mr Bandesha.

Fresh evidence

• [17] In support of his appeal, the appellant adduced (informally, but without objection) job sheets disclosed by Constable Rouse. The Constable had communicated with Mr Bandesha to prepare his victim impact statement. Mr Bandesha said he thought he paid JPY 1,000,000 or JPY 1,040,000 for the vehicle and that he had paid it in instalments; the JPY 350,000 referred to in the AutoHub invoice was only a deposit. Mr Bandesha said: “[i]t’s been almost 4 years in January 2021 that’s all I remember.”
• [18] Evidence was adduced without objection by the Crown from a New Zealand Customs Service staff member, Ms Whittington. She makes the obvious point that GST is required to be paid on the total customs value of the vehicle and freight, not just a part payment, and that it is an offence to do otherwise.^[4]
• [19] Again without objection, the Crown adduced further evidence from Mr Nicholson of Finance Now. He had given evidence at the trial. His further evidence set out the steps taken by Finance Now to assess the value of vehicles used as security. Using the Redbook valuation service, a vehicle of the age, type and mileage of that imported by Mr Bandesha, undamaged, had an approximate value of $14,550. His evidence also showed that at the time of repossession the vehicle was valued by Manheim, an Auckland automotive auction house, at $4,500 — which was also the reserve and eventual sale price. Manheim’s report shows two further things. First, the vehicle had surface scratches and dents, and a faulty tyre, the total repair cost of which would be $1,068. Secondly, that the vehicle had travelled just 30 km since importation.
• [20] There being no objection to the admission of the further evidence above, we grant leave for it to be adduced.^[5]

Conviction appeal

• [21] The conviction appeal centres on this post-trial evidence. Mr Grainger submits it demonstrates Mr Bandesha has been “fraudulent” about the price he paid for the vehicle, either in his declaration for customs duty purposes or in asserting value as part of his victim impact statement (and on which the reparation order was based).
• [22] We do not accept that submission.
• [23] Mr Bandesha’s credibility was already the subject of sustained attack at trial. The defence attack was based on the proposition that Mr Bandesha was the fraudster. It suggested he had purported to sell his own vehicle and made the loan application, rather than the appellant having done so.
• [24] This line of attack ran into a number of difficulties. The first was the incontrovertible fact that Finance Now had paid the money to the appellant, not Mr Bandesha. The appellant sought in his evidential interview to suggest he had simply paid the money on to Mr Bandesha, because the latter did not have an account with the finance company. Mr Bandesha denied this, and the appellant did not give evidence to the jury. The jury was entitled to accept Mr Bandesha’s evidence. The second was that the third party who supposedly had bought the car, Mr Syed, gave evidence that he had neither bought the car nor completed the loan application form. He also said the appellant confessed to having made the loan application, because he was in financial difficulty. (It may be noted that Mr Bandesha also said in evidence that the appellant had made the same confession to him.) The third difficulty is that Mr Bandesha and Mr Syed both went to the police station to make complaints, which on the face of things is difficult to reconcile with fraudulent behaviour on their behalf.
• [25] Mr Bandesha was cross-examined in considerable detail by defence counsel, exploiting inconsistencies and previous strict liability convictions for road transport logbook offences. The jury had ample opportunity to assess his credibility, along with that of Mr Syed who, on the defence theory, was Mr Bandesha’s accomplice and was cross-examined to that effect. Plainly, the jury rejected that defence theory in finding the appellant guilty beyond a reasonable doubt.
• [26] We referred at [6] above to the AutoHub invoice. It was for $2,104. This is not new evidence; it was before the Court and was the subject of cross-examination. Although Mr Bandesha was slightly confused about it, he twice in his evidence identified it as relating to the shipping cost. He was clear that the $2,104 was not the car purchase price paid to the Japanese supplier. As we noted earlier, he also identified the “FOB ¥350,000” as the purchase price. The document is relatively self-explanatory as far as it goes: it charges for shipping and GST. Using the methodology offered by Ms Whittington in her affidavit evidence for the defence, the GST component, $805, exceeds the sum payable on the stated FOB value of JPY 350,000: JPY 350,000 divid[6]d by 79.24⁶ and multiplied by a GST rate of 0.15 is just $663. Nor does it seem to wholly reflect GST payable on the shipping cost of $1,299, which would be around $195. Regrettably Ms Whittington did not address this, was not called to give evidence in person, and we must leave that minor discrepancy there.
• [27] The new evidence focuses on the purchase price paid by Mr Bandesha. As noted at [14], there was little focus on this at trial, but at one point Mr Bandesha identified the “FOB ¥350,000” on the AutoHub invoice as the purchase price.^[7]
• [28] Later statements by Mr Bandesha to Constable Rouse, in preparing a victim impact statement, suggest that was not the full amount he paid the Japanese supplier, but just a deposit. And that the full price was either JPY 1,000,000 or JPY 1,040,000.
• [29] It is difficult to know what to make of that. We do not have the customs declarations in evidence, and Ms Whittington does not produce them. She simply states JPY 350,000 was the declared value. Purchase price and declared value were not examined at trial, and we decline to speculate, or to draw an adverse inference, let alone one of fraud, in the absence of an evidential foundation. If those topics were important, they should have been examined at trial. But they were not important, and were not examined. The brief evidence given by Mr Bandesha on purchase price is equally consistent with simple error on a matter of no apparent forensic significance at trial. Given the considerations set out at [24] above, we do not consider this further evidence demonstrates a miscarriage of justice.

Sentence appeal

• [30] The sentence appeal was confined to the reparation order.
• [31] Much was made before us of a possible discrepancy as to the purchase price paid by Mr Bandesha. That misses the point. For victim impact, and reparation, what matters is not what was paid, but what the lost asset was worth.^[8]
• [32] On worth, the further evidence filed by the Crown, from Mr Nicholson, raises a problem. Mr Nicholson’s evidence at trial referred to the vehicle being sold at auction after repossession, with a reserve of $4,500. His further evidence confirms three things. First, that the vehicle sold at auction for its reserve of $4,500. Secondly, that the vehicle had travelled only 30 km in New Zealand after importation. (As noted earlier, the evidence was that the vehicle remained at the lot from March 2017 until its repossession in November.) Thirdly, that the vehicle had minor damage (scratches, dents and a bald tyre) which would cost $1,068 to repair. The problem is that these numbers are impossible to reconcile, on the present evidence at least, with the vehicle being worth the $17,995 assessed by the sentencing Judge as requiring reparation.
• [33] In this respect we are satisfied the further evidence requires that the reparation order be quashed and remitted to the District Court for redetermination.

Result

• [34] The appellant’s application to adduce fresh evidence is granted.
• [35] The respondent’s application to adduce fresh evidence is granted.
• [36] The appeal against conviction is dismissed.
• [37] The appeal against sentence is allowed.
• [38] The reparation order is quashed and remitted to the District Court for redetermination.

Solicitors:
Public Defence Service, Christchurch for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] Crimes Act 1961, ss 228(1) and 256(1).

^[2] R v Baig [2021] NZDC 3670 at [30]–[31].

^[3] At [35].

^[4] Customs and Excise Act 2018, ss 364, 366 and 371.

^[5] Court of Appeal (Criminal) Rules 2001, r 12B.

^[6] The stated exchange rate in the AutoHub invoice.

^[7] There was little focus, too, on the New Zealand market value of the vehicle. It was not of particular relevance at that stage. The only evidence seems to be that the vehicle had a retail value of something like the $15,995 stated in the loan application sent to Finance Now.

^[8] See generally Rosenberg v R [2015] NZCA 97 at [26], citing Whitehead v R [2014] NZCA 573 at [49]: “Orders for reparation are compensatory in nature and are designed to recompense victims for loss or harm suffered as a result of criminal offending” (emphasis added).