PEREZ v R [2019] NZCA 465

PEREZ v R [2019] NZCA 465 [1 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA222/2019[2019] NZCA 465BETWEEN FRANK PEREZAppellantAND THE QUEENRespondentHearing: 2 September 2019Court: Courtney, Duffy and Woolford JJCounsel: T J Darby for the AppellantA J Ewing for the RespondentJudgment: 1 October 2019 at 10.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Following a jury trial in the District Court at Manukau between 15 and 17 April2019, Frank Perez was found guilty of one charge of using forged $100 bank notesand one charge of possessing forged $100 bank notes. He was found not guilty ofanother charge of using a forged $100 bank note. He was convicted and sentenced to100 hours' community work on each charge of which he was found guilty.11 R v Perez [2019] NZDC 13597 [Sentencing notes] at [9].[2] He now appeals against conviction on the basis that the guilty verdicts wereinconsistent with the not guilty verdict.2Factual background[3] On 27 February 2018, Mr Perez entered PAK'nSAVE in Clendon Park.He purchased $165.17 worth of groceries. He paid with cash, which included a forged$100 bank note. Mr Perez was found not guilty of the charge relating to thistransaction.[4] On 28 February 2018, Mr Perez entered the Warehouse in Manukau.He proceeded to the entertainment section. Mr Perez approached the cashier andasked for an iPhone SE valued at $479. He handed the cashier two genuine $100 notesalong with three forged $100 notes. The cashier gave Mr Perez the iPhone SE and $21in change. He exited the store.[5] On 1 March 2018, Mr Perez entered PAK'nSAVE Clendon again.He purchased $130.78 worth of groceries. He attempted to pay with cash which againincluded a forged $100 bank note. The security manager recognised Mr Perez fromviewing CCTV footage of his visit to the store two days earlier in which he had useda forged $100 bank note. The security manager and owner of the store approachedMr Perez and rejected his attempt at payment. Mr Perez said he was sorry and that hedid not realise the cash was forged. He then handed them a genuine $100 note forpayment. The police were notified. Mr Perez handed his wallet to a police officer.It was found to include three forged $100 bank notes with some genuine cash.[6] Although not produced to us, the forged notes are said to be obvious forgeries.They were printed on ordinary paper and had a black oval where the transparent plasticwindow should have been.[7] In explanation, Mr Perez said he had recently sold a water blaster on TradeMefor approximately $1,000 cash and did not realise some of the bank notes he receivedin payment were forged. However, when police spoke with the purchaser of the water2 Criminal Procedure Act 2011, s 232(2)(a).blaster, he was able to provide documentary proof that he had withdrawn funds froman ATM to pay Mr Perez in cash.[8] In his evidence at trial, Mr Perez offered another explanation as to how hemight have innocently received the forged money: that he had also sold a dirt bikethrough TradeMe around that same time and that the seller had also paid him in cash.[9] The jury acquitted Mr Perez of the charge relating to the first PAK'nSAVEincident but found him guilty of the remaining two charges.Approach on appeal[10] The principles applicable to appeals based on inconsistent verdicts are wellestablished. The obligation to establish inconsistency rests with the personchallenging the conviction.3 An appellate court will only intervene when the jury'sdifferent verdicts represent "an affront to logic and commonsense which isunacceptable and strongly suggests a compromise of the performance of the jury'sduty".4 An example is "when the evidence on one count is so wound up withthe evidence on the other that it is not logically separable".5[11] An appellate court is reluctant to reach a conclusion of inconsistency and willnot usurp the jury's function by substituting its view of the facts for that of the jury.6The decisive question is not whether the acquittal was reasonable, but whetherthe convictions were unreasonable.7Appellant's submissions[12] Mr Perez submits that the only discernible difference in the evidence betweenthe events giving rise to the first charge in respect of which he was found not guilty,and the events giving rise to the two charges in respect of which he was found guilty,3 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68(f)]; citing MacKenzie v R (1996)190 CLR 348 (HCA); and R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [14]4 At [68(e)], citing MacKenzie v R, above n 3, at 368.5 At [68(e)], citing R v Pittiman, above n 3, at [8].6 At [68(d)].7 At [69], citing R v Pittiman, above n 3, at [13].is a deduction that his conduct as seen on the CCTV footage proves that he knew bythen that the banknotes were forgeries.[13] Mr Perez submits that in respect of the first incident, the jury clearly tookthe view that he either did not know that the banknote was a forgery, or that there wasinsufficient proof that he did have such knowledge. Accordingly, he invited the Courtto view the CCTV footage of all three incidents as part of the process of decidingwhether the guilty verdicts were unreasonable and whether a miscarriage of justicehad occurred.[14] Mr Perez's position was that when he handled the banknotes he was simplygetting ready to make a relatively large purchase and he had no idea they wereforgeries. He says that the deduction apparently made by the jury was not justifiableand was unreasonable.[15] Mr Perez submits that the evidence on the charge on which he was found notguilty and the charges on which he was found guilty were for all practical purposesidentical. He says that a finding that the critical element of knowledge was indeedpresent in relation to the latter two charges cannot be made on the basis of what is seenin the CCTV footage, and there was no other evidence to establish a difference.Discussion[16] At Mr Perez's invitation, we viewed the CCTV footage of all three incidents.The CCTV footage from PAK'nSAVE of the first incident was grainy and unclear,but Mr Perez can be seen pulling the notes out of his pocket before handing them tothe checkout operator. The CCTV footage from the Warehouse was clearer and showsMr Perez rearranging some of the notes in his wallet before handing them tothe cashier. Specifically, the CCTV shows Mr Perez pulling one note partway out,then returning it; pulling a bundle of cash out and moving a note from the top tothe bottom, and another note from the bottom of the pile to the top; checking the noteat the bottom of the pile; and reforming the notes into a pile before handing them over.Although it is not of clear quality, the CCTV footage from PAK'nSAVE of the thirdincident shows Mr Perez shuffling notes and arranging the forged $100 note so it wasat the bottom of the pile given to the checkout operator.[17] The evidence in respect of all three incidents was, therefore, not identical.The CCTV footage from the Warehouse was quite clear. The transaction wasrelatively lengthy, with the cashier coming and going out of sight as she searched forand obtained the phone model obviously requested by Mr Perez. Mr Perez handledthe cash in his wallet for some time and with some deliberation.[18] It was, therefore, open to the jury to conclude that by the time of the secondincident, at least, Mr Perez must have known that he was in possession of a number offorged $100 notes, given the way he sorted out the cash in his wallet at the Warehouse.Similarly, when he returned to PAK'nSAVE the next day, Mr Perez could be seenshuffling notes. The jury may well have given the benefit of the doubt to Mr Perez inrespect of the first incident at PAK'nSAVE when he pulled the notes straight out of hispocket. In those circumstances, there is logic in the different verdicts. They did nothave to be the same. There is no inconsistency.Result[19] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent