MILLS v NEW ZEALAND POLICE [2020] NZHC 2217

MILLS v NEW ZEALAND POLICE [2020] NZHC 2217 [28 August 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-67[2020] NZHC 2217BETWEEN JOSEPH MILLSAppellantAND NEW ZEALAND POLICERespondentVirtual hearing: 28 August 2020Appearances: L K McMaster for the appellantA S C Alcock for the respondentDate of judgment: 28 August 2020REASONS FOR JUDGMENT OF JAGOSE JThe reasons for judgment was delivered by me on 28 August 2020 at 2.00pm..Registrar/Deputy RegistrarSolicitors:Public Defence Service, HamiltonHamilton Legal, Crown Solicitor, Hamilton[1] Joseph Mills appeals against the judgment of Judge RLB Spear in the DistrictCourt at Hamilton on 20 July 20201, convicting him of money laundering.2[2] At the conclusion of this virtual hearing, as an alternative to my oral judgmentthen, I offered to give the result then, with reasons to follow in writing. Counsel werecontent with the latter course. I dismissed the appeal. These are my reasons.Background[3] On 3 December 2018, $3,534 was transferred from the complainant's bankaccount to a bank account said to be held by Mr Mills. Later that day, $3,500 waswithdrawn from Mr Mills' bank account. On enquiry by the police under caution,Mr Mills explained a friend had asked to use his bank account to transfer money into,and to use his bank card to withdraw the transferred money from, the account.Mr Mills agreed, and supplied his account details and card to his friend.Judgment under appeal[4] The Judge heard evidence from the complainant and a police officer. Thecomplainant established the unlawful transfer of money from her account to another.3The police officer established the other account was held in Mr Mills' name.4 Theofficer's enquiry of Mr Mills was not formally recorded, but his evidence was drawnfrom photocopies of his contemporaneous notes (his notebook no longer beingavailable).5 The Judge found Mr Mills' response to be "cogent" and "credible"evidence of the unlawfully-obtained money's transfers,6 and Mr Mills' provision toanother of access to his bank account and card carried sufficient risk that other person"may use such access for dishonest purposes" to render Mr Mills reckless as to themoney's lawful source,7 thus establishing his guilt beyond a reasonable doubt.81 Police v Mills [2020] NZDC 14557.2 Crimes Act 1961, s 243(2).3 Police v Mills, above n 1, at [3]–[4].4 At [5].5 At [6]–[7].6 At [18]–[19].7 At [24].8 At [25].[5] Mr Mills' counsel, Laurie McMaster – while accepting the transfer of moneyfrom the complainant's account was of the proceeds of an offence – argues the Judgeerred in fact in concluding Mr Mills' guilt, absent evidence linking him to the transferof funds from the complainant's account, or linking his friend to the money transferredfrom that account. She also argues the Judge erred in law in concluding Mr Mills wasreckless because of the lack of evidence of his relationship with his friend.Approach on appeal[6] Mr Mills has a first appeal right against his conviction to this Court.9 I mustallow an appeal against conviction if I am satisfied the Judge "erred in his assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or if I am satisfied "a miscarriage of justice has occurred for any reason".Otherwise I must dismiss the appeal.10[7] By 'miscarriage of justice' is meant something has occurred in relation to trialto create a real risk against a more favourable outcome for Mr Mills, or has resultedin an unfair trial or a nullity.11 The appeal proceeds by way of rehearing, in which I amto form my own view of the facts and determine the appeal accordingly,12 while takinginto account any advantages the trial judge may have had.13 Mr Mills must show errorhas been made. The threshold is high; not every error will amount to a miscarriage ofjustice.14Discussion[8] The key assessment for the purposes of s 243(2) is not if Mr Mills himselfconcealed or uplifted the complainant's money, but if he 'engaged' with a moneylaundering transaction – relevantly, here, if he "assists any other person, whether9 Criminal Procedure Act 2011, ss 229(1) and 230(1)(b).10 Section 232.11 Section 232(4); Misa v R [2019] NZSC 134 at [38]–[48], citing R v Sungsuwan [2005] NZSC 57,[2006] 1 NZLR 730 at [110], R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145, and Wiley v R[2016] NZCA 28, [2016] 3 NZLR 1.12 Sena v R [2019] NZSC 55 at [32].13 At [38]–[40].14 Otis v Police [2019] NZCA 231 at [4], citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR764 at [38].directly or indirectly, to deal with that property"15 – and was reckless as to thepossibility the property was the proceeds of an offence, which is open to proof byinference.16[9] The essence of the police officer's evidence, as to his five-minute enquiry ofMr Mills at home on 8 May 2019, was:I asked him about some money that had been transferred into his account. Heseemed to recall what I was asking him about and stated that's a friend of his had transferred the money into his account and then had asked him for theuse of his bankcard to withdraw the money from his account.[10] Ms McMaster argues there was no evidence linking the complainant'sevidence to Mr Mills' statement to police, which lacked specificity as to the amountand date of his friend's access to his bank account and card. She also argues theevidence did not "confirm" the payment was made into Mr Mills' account. There wasnothing connecting Mr Mills' friend to the transfer out of the complainant's account.And she says the Judge impermissibly inferred, from the absence of evidence of MrMills' relationship with his friend, it was not such as to exclude his recklessness inallowing access to his bank account and card. The last meant Mr Mills' guilt wasestablished in breach of Mr Mills' rights under the New Zealand Bill of Rights Act1990 to a presumption of innocence and not to be compelled to be a witness.[11] The former complaints are open to being made on the relatively brief and non-specific evidence led from the police officer of his casual and informal investigationof the offending. Nonetheless, they are complaints Mr Mills was not asked to affirmidentification evidence obtained on production order issued to the bank, or to providefurther specifics of his own explanation. It was open to the Judge to accept the policeofficer's evidence essentially as unchallenged. The officer's cross-examination did notgo to any of those details, but instead dwelled on the conduct of the officer'sinvestigation and the accuracy of an aspect of his record of it (which the Judge heldimmaterial).1715 Crimes Act 1961, s 243(4).16 R v Allison [2006] 1 NZLR 721 (CA) at [28].17 Police v Mills, above n 1, at [19].[12] The latter complaint misconstrues the Judge's reasoning. The Judge foundproviding another access to one's bank account and card was reckless, as riskingaccess for dishonest purposes, unless there was mitigating evidence such as knowledgeof and relationship with that other. The Judge is express: "I reach that conclusionwithout of course an explanation or any evidence at all as to who [the friend] is andwhat relationship [s/he] might have with [Mr Mills]".18[13] I cannot identify any real risk of a more favourable outcome for Mr Mills,either on the evidence before the Judge or more generally in relation to the conduct oftrial. His trial was neither unfair nor a nullity.Result[14] The appeal was dismissed.—Jagose J18 At [24].