CHAND v R [2023] NZCA 276

CHAND v R [2023] NZCA 276IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA449/2019[2023] NZCA 276BETWEEN PRADEEP CHANDAppellantAND THE KINGRespondentCA452/2019BETWEEN RICHARD KUMARAppellantAND THE KINGRespondentCA459/2019BETWEEN RAKESH CHANDAppellantAND THE KINGRespondentCA460/2019BETWEEN VIJENDRA PRASADAppellantAND THE KINGRespondentHearing: 25 and 27 October 2022 (further memoranda received23 November 2022)Court: Brown, Mallon and Downs JJCounsel: R M Mansfield KC for Pradeep Chand, Rakesh Chand andVijendra PrasadH M S Cheeseman for Richard KumarK E Hogan for RespondentJudgment: 3 July 2023 at 3 pmJUDGMENT OF THE COURTA The Crown's application to dismiss Pradeep Chand's appeal for want ofprosecution is declined. An extension to appeal out of time is granted.Pradeep Chand's application to adduce further evidence is declined.Pradeep Chand's conviction appeal is dismissed. His sentence appeal is alsodismissed.B Richard Kumar's conviction appeal is dismissed.C Rakesh Chand's application for leave to adduce further evidence is declined.His conviction appeal is dismissed.D Vijendra Prasad's application for leave to adduce further evidence isdismissed. His conviction appeal is dismissed. His sentence appeal is alsodismissed.____________________________________________________________________Table of contentsIntroduction [1]Factual background [7]Legislation under which grants made [7]Grantors [9]Grantees [10]Pradeep Chand's conviction appeal [16]Preliminary issues [16]Charges [19]Crown case: charge 3 [21]Defence at trial: charge 3 [34]Crown case: charge 9 [36]Defence at trial: charge 9 [53]Assessment [55]Pradeep Chand's appeal against sentence [64]District Court sentence [64]Submissions [69]Assessment [71]Richard Kumar conviction appeal [75]Charges [75]Appeal issue [76]The requirements of s 220 [77]Evidence charge 16 [84]Evidence charge 18 [94]Defence at trial [103]Trial judge's rulings and directions [106]Was there a misdirection? [121]Was the verdict unreasonable? [128]Rakesh Chand's conviction appeal [134]Charges [134]Crown case: charge 6 [137]Crown case: charge 11 [151]Crown case: charge 15 [159]Defence at trial [169]New evidence [175]Assessment [180]Vijendra Prasad conviction appeal [189]Charges [189]Crown case: charge 15 [190]Defence at trial [191]Assessment [192]Vijendra Prasad sentence appeal [193]District Court sentence [193]Submissions [198]Assessment [201]Result [205]REASONS OF THE COURT(Given by Mallon J)Introduction[1] The appellants, along with others, stood trial before Judge Moala and a jury inthe Manukau District Court on fraud charges. Those charges arose out of applicationsfor grants from gaming machine proceeds made by four incorporated societiesassociated with the appellants. There were 11 charges of theft by a person in a specialrelationship (the s 220 charges).1 These related to the misuse, or fraudulentaccounting, of the grants received. There were five charges of using a document1 Crimes Act 1961, s 220.dishonestly (the s 228 charges).2 These related to false documents that were submittedin applying for grants. There were also two charges of obstructing a gamblinginspector (the obstruction charges).3[2] Pradeep Chand was convicted of two s 220 charges4 and one obstructioncharge.5 He was sentenced to two months' home detention on the s 220 charges. Hewas fined $500 on the obstruction charge.6 He appeals his conviction on the s 220charges. He says the evidence did not establish that he had guilty knowledge (that is,the requisite mens rea) to the criminal standard. If the conviction appeal is notsuccessful, he appeals the Judge's decision to decline his application for a dischargewithout conviction. If that appeal is unsuccessful, he does not appeal the homedetention sentence, which he has already served.[3] Richard Kumar was convicted of two s 220 charges.7 He was acquitted on as 228 charge.8 He was sentenced to three months' community detention, 100 hourscommunity work and ordered to pay $10,165 reparation.9 He appeals his convictioncontending that the Judge erred in concluding that he was in a special relationship withthe grantors of the grants and that he had control of the funds, and in not treating hisinvolvement separately from his co-defendants. He says that the Judge misdirectedthe jury in relation to whether he had control of the relevant funds and the jury's verdictwas unreasonable. There is no appeal against his sentence.[4] Rakesh Chand was convicted of six s 220 charges,10 two s 228 charges,11 andone obstruction charge.12 He was sentenced to eight months' home detention for thess 220 and 228 convictions and fined $500 on the obstruction conviction.13 He appeals2 Section 228(1)(b).3 Gambling Act 2003, s 346(1)(d).4 Charges 3 and 9 in the Crown Charge List.5 Charge 4 in the Crown Charge List.6 R v Prasad [2019] NZDC 19350 [Sentencing notes] at [73].7 Charges 16 and 18 in the Crown Charge List.8 Charge 17 in the Crown Charge List.9 Sentencing notes, above n 6, at 59.10 Charges 3, 6, 8, 10, 12 and 15 in the Crown Charge List.11 Charges 11 and 14 in the Crown Charge List.12 Charge 5 in the Crown Charge List. He was found not guilty of charge 1, 2 and 7.13 Sentencing notes, above n 6, at [51].two of the s 220 convictions14 and one of the s 228 convictions15 on the basis of experthandwriting evidence for which he seeks leave to adduce.16 He says if the appealagainst conviction on those charges is successful it would give rise to a miscarriage ofjustice on the remaining charges. This is because the prosecutor closed to the jury onthe basis that it could use propensity reasoning in determining whether the chargeswere proven. Mr Chand does not appeal his sentence.[5] Vijendra Prasad was convicted of three s 220 charges.17 He was sentenced tothree months' home detention and ordered to pay reparation of $23,569.75.18 Heappeals his convictions on the same basis as Rakesh Chand. He appeals his sentenceon the basis that the Judge erred in not granting his application for a discharge withoutconviction.[6] The other defendants were Binesh Pratap, Anup Kumar, Ashok Kumar andShree Sanatan Dharam Pratanidhi Sabha Manukau Branch Inc (Manukau Sanatan).Manukau Sanatan was convicted and fined $8,000.19 It does not appeal. The otherswere found not guilty of the charges they faced.Factual backgroundLegislation under which grants made[7] The Gambling Act 2003 (the Act) regulates the gambling sector. The Act isadministered by the Department of Internal Affairs (the DIA). One of the purposes ofthe Act is to ensure that money from gambling benefits the community.20 To that end,the Gambling (Class 4 Net Proceeds) Regulations 2004 (the Regulations) provide agrant application system under which applicants apply to licensed corporate societiesfor a grant of funding.14 Charges 6 and 15.15 Charge 11.16 Criminal Procedure Act 2011, s 335.17 Charges 8, 9 and 15.18 Sentencing notes, above n 6, at [93].19 At [81].20 Gambling Act, s 3(g).[8] Pursuant to the Regulations, a grant application must include supportingdocuments, including those specifying the reasons for the grant application, the totalamount of funding sought and other appropriate information. Where the applicant isnot a natural person, the application must be signed by two authorised representativesof the applicant community group.21 It is a standard condition of receiving a grant thatgrant money is used only for the specific purpose or purposes for which the applicationwas made and in accordance with any conditions attached.22 Grant recipients arerequired to account to the corporate society for the way in which grant funding wasspent. If it has not been spent on authorised purposes, it must be refunded to thecorporate society.23Grantors[9] The charges relate to 11 events24 for which grants were obtained from fourlicensed corporate societies: Aotearoa Sports Foundation Ltd (Aotearoa Sports),Cuesports Foundation Ltd (Cuesports), Four Winds Foundation Ltd (Four Winds) andInfinity Foundation Ltd (Infinity). Aotearoa Sports, Cuesports, Four Winds andInfinity held licences from the DIA to operate gaming machines, and to collect gamingmachines profits and distribute them to the community for authorised purposes.Grantees[10] The grant applications were made on behalf of four incorporated societiesbased in South Auckland: Manukau Sanatan; the New Zealand Fiji AssociationSanatan Football Club Inc (NZ Fiji Sanatan AFC); Tavua Cultural & Sports Club Inc(Tavua); and Mangere United Soccer Club Inc (Mangere United).[11] Manukau Sanatan seeks to preserve, promote and safeguard the religious,social, economic, cultural and educational interests of the Sanatan (Fijian Indian)community in Manukau. Defendants associated with Manukau Sanatan were:21 Gambling (Class 4 Net Proceeds) Regulations 2004, reg 17(2)(a).22 Gambling Act, s 115A.23 Under reg 12(b) of the Gambling (Class 4 Net Proceeds) Regulations, the license holder must useits best endeavours to obtain the return of money granted if it has information that the recipienthas not used the money for the specific purpose for which it was distributed.24 Referred to as events 1–8 and 10–12 in the Charge List. Charges in relation to event 9 related toother defendants and were not part of the trial.Pradeep Chand (Patron and President); Rakesh Chand and Anup Kumar(Vice Presidents); Binesh Pratap (Treasurer); and Richard Kumar (a member since2008 who attended and voted at board meetings, and from time to time was appointedas organising chairman of particular events run by Manukau Sanatan).[12] NZ Fiji Sanatan AFC sought to encourage and promote the playing of footballamong members of the Sanatan community in New Zealand and elsewhere.Defendants associated with NZ Fiji Sanatan AFC were: Rakesh Chand (Chairman);Anup Kumar (Secretary and, from time to time, appointed organising chairman ofparticular events run by NZ Fiji Sanatan AFC); Binesh Pratap (a member since 2008and Treasurer since 2010); and Vijendra Prasad (Secretary).[13] Tavua's purpose was to promote and participate in sports and cultural activities,including football tournaments and Diwali festivals. Defendants associated withTavua were Rakesh Chand (President from its inception and until his resignation in2013) and Ashok Kumar (Secretary, and subsequently President).[14] NZ Fiji Sanatan AFC and Tavua were struck off the register of incorporatedsocieties in 2011 and 2014 respectively so no charges were brought against them.[15] Mangere United, the general object of which was to promote soccer, was thesubject of a single s 220 charge which was severed from the other charges.25Pradeep Chand's conviction appealPreliminary issues[16] The Crown submits that Pradeep Chand's appeal should be dismissed for wantof prosecution. This is because Mr Chand failed to progress his appeal since filing hisappeal on 12 September 2019. In July 2021 he instructed Mr Mansfield KC but stillthe appeal was not progressed.[17] Mr Chand was present at the appeal hearing. He had endeavoured to meet withMr Mansfield shortly before the hearing but had been unable to do so. We adjourned25 Department of Internal Affairs v Chand [2017] NZDC 25355.the hearing to later in the week to enable Mr Mansfield to obtain instructions fromhim. At the adjourned hearing we heard submissions from Mr Mansfield and from theCrown in respect of his appeal. We also provided Mr Mansfield and the Crown withmore time to file further submissions following the hearing if they wished to do so. Inthe event, neither did so.26[18] We are satisfied it is in the interests of justice to hear Pradeep Chand's appealdespite the significant delay in advancing the appeal. We are satisfied that the Crownwas not prejudiced by the delay given the opportunity it was provided to advancefurther submissions after the hearing. We therefore decline to dismiss the appeal forwant of prosecution. We also grant leave to appeal out of time.27Charges[19] Mr Chand faced and was convicted of the following two s 220 charges:Charge 3 CRN 15092505198: Rakesh ChandCRN 15092505194: Pradeep ChandTheft by a person in a specialrelationshipSection 220Crimes Act 1961That RAKESH CHAND and PRADEEPCHAND, between 14 May 2009 and18 December 2009, at Auckland, havingreceived or having control over property, onterms or in circumstances that they knewrequired them to account to any other person forthe property, intentionally failed to so account.Particulars: Dealings with $28,000.00 grantedby Infinity Foundation to Tavua Cultural SportsClub Incorporated in respect of grantapplication 303111 as shown by submittingfalse documents as part of the auditreconciliation for that grant.Charge 9 CRN 15092505196: Pradeep ChandCRN 16092500049: Shree SanatanPratanidhi Dharam Sabha Manukau BranchIncorporatedCRN 15092505178: Vijendra PrasadTheft by a person in a specialrelationshipSection 220Crimes Act 1961That PRADEEP CHAND, VIJENDRAPRASAD and SHREE SANATANPRATANIDHI DHARAM SABHAMANUKAU BRANCH INCORPORATED,between 28 October 2010 and 20 August 2011,26 The day after the hearing Mr Mansfield refiled his submissions correcting typos. The Crown fileda memorandum on 23 November 2022 advising that it did not wish to place any furtherinformation before the Court.27 Pradeep Chand's appeal was filed one day out of time.at Auckland, having received or having controlover property, on terms or in circumstances thatthey knew required them to account to any otherperson for the property, intentionally failed to soaccount.Particulars: Dealings with $28,000.00 grantedby Infinity Foundation to Tavua Cultural SportsClub Incorporated in respect of grantapplication 303111 as shown by submittingfalse documents as part of the auditreconciliation for that grant.[20] He also faced and was convicted of the following obstruction charge:Charge 4 CRN 15092505193Obstructing gambling inspectorSection 346(1)(d)Gambling Act 2003That PRADEEP CHAND, on or about 29 April2014, at Auckland, intentionally obstructed orattempted to obstruct a gambling inspector inthe execution of his duty.Particulars: By asking Bharat Kumar to lie toa gambling inspector, namely StephanusLeppan.Crown case: charge 3[21] Charge 3 related to event 2. It involved an application by Tavua to Infinity.The "main contact person" stated on the application was Rakesh Chand, President.[22] The application required that two people sign a "Consent to Audit". Thisconsent related to an audit or inspection that the DIA may direct of the books, accounts,or data systems in which the grant monies were deposited. It also required the twopeople to "certify that the information included in this application together with anysupporting details, is true and correct". Rakesh Chand, along with Ashok Kumar(Vice President), signed this Consent to Audit on 30 March 2009.[23] As stated on the application form, funds were sought for the following purpose:The club has organised [an] ethnic world cup soccer tournament and wouldlike to apply for funds to cover the cost of playing gear, prizes and venue hire.[24] The application was for $49,078.63 which was to cover:(a) soccer gear and uniforms: $36,858.07;(b) trophies, prizes and medals: $5,220.56; and(c) venue hire: $7,000.[25] The documents filed in support of the application included:28(a) two unsigned itemised quotations for sports gear, one dated 20 February2009 in the name of "Score Sportswear Ltd" and the other dated26 February 2009 in the name of "Champs Sports", both totalling$36,858.07;(b) a University-Mount Wellington Association Football Club quotationdated 6 March 2009 addressed to Tavua for the "hire of Bill McKinlayPark venue for Ethnic World Cup 9th-13th April 2009" for $7,000 plusGST; and(c) an unsigned itemised quotation dated 25 February 2009 in the name of"Trophies Plus" addressed to "Tavva (sic) Sports & Cultural Club Inc"totalling $5,220.56.[26] Infinity made a grant of $28,000 which was deposited into Tavua's account on14 May 2009.[27] Mr Brooker, an accountant with Markhams, was appointed to audit the grant.There were delays in responding to the audit with Rakesh Chand and thenVijendra Prasad seeking and being granted extensions. When the second extensionwas not met, Mr Brooker requested the documents by 24 December 2009. On18 December 2009 Vijendra Prasad provided the documentation relating to the grant.28 Additional supporting documentation were: a flyer for the "Ethnic Soccer World Cup Tournament"at Bill McKinlay Park, Panmure, Auckland on Easter weekend 10th–13th April 2009, with thedescription "[16] of NZ's best Ethnic teams battle it out for soccer supremacy over two fun-filledweekends" with Bobby Chand named as contact (Rakesh Chand is known as Bobby); a depositslip for Tavua's bank account; a certificate of incorporation for Tavua; a Tavua resolution to applyfor funding for the Ethnic Soccer World Cup Tournament for the amount of $49,078.63 dated4 March 2009 and signed by Rakesh Chand (President) and Ashok Kumar (Vice President); aTavua budget of income and expenses dated 30 March 2009 of $54,328.63 approved and signedby Rakesh Chand (President);28 and a statement for Tavua's cheque account showing a balance of$0 dated 17 April 2009 and faxed to "Sharon" on 14 May 2009 "[as] per your discussion withRakesh Chand".[28] The enclosed information included an income and expenditure statement forthe $28,000 Infinity grant. This included expenditure on 31 May 2009 of $7,000 toUniversity-Mount Wellington Association Football Club (cheque number 261291)29and on 25 September 2009 to Mangere Fashions for $3,555 (cheque number 261296).The Crown alleged that Rakesh Chand and Pradeep Chand controlled this grant andprovided false information to Vijendra Prasad for the audit. The case againstRakesh Chand related to the documents provided in support of these two items. Thecase against Pradeep Chand related only to the Mangere Fashions supportinginformation.[29] The information provided in support of the Mangere Fashions' expenditurewas: a Mangere Fashions invoice dated 24 April 200930 addressed to Tavua in theamount of $3,555 for 40 polos with embroidery, 40 screen-printed shirts and20 officials' shirts; and a bank statement for the Tavua cheque account showing acheque payment withdrawal (cheque number 261296) on 28 September 2009 for$3,555. The Crown alleged the Mangere Fashions invoice was dishonestly providedas Mangere Fashions had not in fact supplied the goods specified in the invoice.[30] The Crown called evidence from Bharat Kumar, the owner of MangereFashions. He gave evidence about statements he made to Mr Leppan, seniorinvestigator from the DIA. Mr Leppan asked Mr Kumar about the Mangere Fashionsinvoice. Mr Kumar said that "Pradeep Chand approached [him] first, to ask if [he]could give them a [quotation] for some uniforms they wanted for Tavua Sports Club".Mr Kumar said he could do that. Pradeep Chand said he would follow it up with hisfriend, Rakesh Chand, who would come and see Mr Kumar regarding what wasneeded. The conversation took place in his Māngere shop. A matter of days laterRakesh Chand came to his shop. He gave Mr Chand the invoice and Mr Chand told29 The information provided in support of the University-Mount Wellington payment was: adocument on University-Mount Wellington letterhead dated 31 May 2009 recording "[received]from Tavua Sports and Cultural Club. $7,000 for hire of Bill McKinlay Park venue for EthnicWorld Cup 9th-13th April 2009[.] R J Douglas[,] President"; and a bank statement for Tavua'scheque account recording a cheque payment (cheque number 261291) on 18 May 2009 for $7,000with "University-Mount Wellington Association Football" handwritten on the statement.Mr Chaudrey gave evidence that, after providing the quote, he did not hear back from RakeshChand. He therefore hired the park out to another group for Easter weekend. He was adamantthat the Ethnic Soccer World Cup did not take place over Easter. It was held in March instead.30 The date is not entirely clear. It appears to be "4" for April rather than "7" for July.him he would be coming back to order the uniforms. They did not come back and hedid not supply any of the goods referred to in the invoice. No money had changedhands.[31] Mr Kumar said that Mr Leppan came back to see him a few months later inApril 2014. He showed Mr Kumar a bank deposit slip from Mangere Fashions. Heasked Mr Leppan to give him some time to look through his bank statements. Whenhe did look at his bank statement, he saw that he had deposited a cheque. Hetelephoned Pradeep Chand and asked "what's the story on this?". Mr Chand said"[we] gave you a cheque, you banked it and then you gave us a cash cheque back".Mr Kumar said that he had forgotten about this until Mr Leppan came back with thedeposit slip and Pradeep Chand confirmed what had happened. He confirmed that hehad been given the cheque and he had banked it and after a couple of weeks herefunded the money. He could not remember exactly who gave him the bank chequebut thought it was most probably Rakesh Chand. He gave Tavua a cheque for $3,500.He refunded the money because Tavua said they did not want the goods and becausePradeep Chand was a friend of his for the last 10 years. A phone record confirmed atelephone call between Mr Kumar and Pradeep Chand on 29 April 2014.[32] Mr Leppan spoke to Mr Kumar again on 1 May 2014. Mr Kumar said that heinitially did not remember much but something "clicked" when he calledPradeep Chand and he found the cheque butt. Mr Kumar told Mr Leppan thatPradeep Chand had told him to tell the DIA that he had supplied the goods. Mr Kumartold Pradeep Chand that he could not do that. Pradeep Chand told him it would be badfor the Tavua Sports Club and Manukau Sanatan and would give them a bad name.He told Pradeep Chand that he would not get away with telling Mr Leppan that he hadsupplied the goods because his goods are unique and nobody else has those goods.Pradeep Chand then said he would send Rakesh Chand to Mr Kumar. The next dayRakesh Chand came to see Mr Kumar and insisted that he tell the DIA that he hadsupplied the goods. Rakesh Chand kept insisting and so he told Rakesh Chand that hewould see what he could do. Rakesh Chand said that they would "look after" him.[33] Relying on Mr Kumar's evidence, the Crown contended that Pradeep Chandwas involved in paying the $3,555 cheque to Mangere Fashions and then recoveringthe money back from him. The Crown alleged that Pradeep Chand was jointly liableas a principal with Rakesh Chand or, alternatively, he was a secondary party byassisting Rakesh Chand in obtaining the quote from Mangere Fashions that wasfraudulently used in the audit and by facilitating the payment and refund arrangement.Defence at trial: charge 3[34] On charge 3, in closing to the jury defence counsel submitted thatPradeep Chand had no control over anything in relation to the grant. He did not signthe application form, he was not an executive member of Tavua, he had no signingauthority over the Tavua bank accounts, he had no control over what was to be donewith the grant, there was no evidence that he was aware of the terms and conditions ofthe grant, and he had nothing to do with the reconciliation.[35] Defence counsel further submitted that Bharat Kumar was an unreliablewitness whose evidence should be put to one side. He had accepted in evidence thathe had been trying to piece together what could have happened. Initially whenMr Leppan showed Bharat Kumar a cheque number for the amount of $3,555 madeout to Mangere Fashions, Bharat Kumar said that he had no knowledge of the chequeand had never received the cheque or any money from Tavua. It was submitted that,when Mr Leppan went back to Bharat Kumar on 29 April 2014 with a deposit slipsigned by Bharat Kumar to deposit the cheque into his bank account, Bharat Kumarrealised he had got himself in a bind and blamed Pradeep Chand for the trouble he wasin. It was submitted that, knowing that Mr Leppan had proof that Mangere Fashionsreceived the money, when Mr Leppan came back on 1 May 2014 to take anotherformal statement, Bharat Kumar made up a story about Pradeep Chand telling him togive the cash back to him and to tell the DIA that he had supplied the goods.Crown case: charge 9[36] Charge 9 related to event 5. It involved an application by Manukau Sanatan toAotearoa Sports.31 The "main contact person" stated on the application wasVijendra Prasad, Secretary.31 This was one of two applications made for the Diwali festival. The other application, which is thesubject of charge 8, was made by Cuesports and a grant for $20,000 was approved and paid toManukau Sanatan in late October 2010.[37] The application form stated the conditions of grant, which included:All grant money must be used for the purpose approved within 3 months ofthe grant being made (or any later date agreed by Aotearoa Sports Foundationin writing).Copies of invoices, receipts and bank statements must be provided to AotearoaSports Foundation within 3 months of the grant being made to verify that thegrant has been used in accordance with the purpose approved.Any grant money which is not spent on the purpose approved must be returnedto Aotearoa Sports Foundation within 3 months of the grant being made.[38] The application form required that two people sign a "consent to audit" andprovide a declaration that the information provided in the application form was trueand correct. Two representatives signed the consent to audit on 7 October 2010. Thenames of the signatories were not included in the form. The Crown said the applicationwas signed by Vijendra Prasad and Pradeep Chand.[39] As stated on the application form, funds were sought for the following purpose:To organise an outdoor/indoor cultural show to mark [the Diwali] festival oflights on 31/10/10. An open free entry is accorded to all the people toparticipate and enjoy the day out and finally end the day with spectacularfireworks, entertainments to kids and the public at large.[40] The application was for $60,449. Included with the application were quotesfrom various suppliers. They included a quote for advertisement and radio coverage,including 10 hours of live radio coverage on the day from Apna Networks Ltd(Apna Networks), totalling $19,500.32[41] Aotearoa Sports provided a grant of $20,000, which was deposited intoManukau Sanatan's account on 27 October 2010.[42] The Diwali festival of lights took place on 31 October 2010.32 The other quotes provided were for: live entertainment (Richard Kumar) for $7,780; TV coverage(NZ TV Productions Ltd) for $4,500; sounds systems (Niks Mobile DJz and Sounds) for $3,800;lighting and power supply for the venue (Krispak Engineering Services Ltd) $8,750; fireworksdisplay (Boom Boom Fireworks) for $11,500; helicopter transport (Helitrans Ltd) for $846.40;and hire of venue (Auckland Catholic Samoan Community) for $2,500 including a bond of $500.[43] The subsequent required reconciliation for the grant was not forthcoming.33Following correspondence from Lloyd Robinson, the chairperson of Aotearoa Sports,Vijendra Prasad provided reconciliation documents on 20 August 2011, some10 months after the event. The case against Pradeep Chand related in particular to thereconciliation documents for payments purportedly made to Apna Networks. Thereconciliation documents included:(a) A summary document of how the $20,000 grant was allocated.34 Theallocations included a "final payment" to Apna Networks of $5,409.75made on "13/01/2010" with cheque number 86.(b) A document on Apna Networks' letterhead addressed to ManukauSanatan dated 5 November 2010, described as a receipt, with ahandwritten notation of "CHQ 59 & 86", and recording two items: a"deposit paid to Apna for live coverage for Diwali 2010" of $2,500on 10 October 2010; and "Full and Final Payment for advertising andlive Radio coverage" of $5,469.75 on 30 October 2010.(c) A bank statement for Manukau Sanatan for the period10-17 January 2011 recording a withdrawal of $5,409.75. The typewas recorded as "CQ", with a reference of "000086". The particularsfor the withdrawal were handwritten as "Apna Networks Ltd".[44] In addition to the reconciliation documents, the documentary evidence beforethe jury included:(a) The cheque butt for cheque 59: with a date of 19 October 2010, adescription "National Bank Repayment Loan" and an amount of$2,500.33 This was also the position for the Cuesports grant for the same festival (event 4).34 The allocations were: 3/11/2010, cheque number 65, Niks Mobile DJZ & Sounds, $1,100;3/11/2010, cheque number 74, Niks Mobile DJZ & Sounds, $1,100 (described as the "[final]payment for sounds"; 13/01/2010, cheque number 86, Apna Networks Ltd, $5,409.75 (describedas the "final payment"); 1/11/2010, cheque number 66, Boom Boom Fireworks Ltd, $4,500; and2/11/2010, cheque number 62, Richard Kumar, $7,780. These amounts totalled $19,889.75 andthe summary document showed a refund of $110.25.(b) A corresponding Manukau Sanatan cheque (59) dated 19 October 2010for $2,500 made out to National Bank dated 19 October 2010.(c) The cheque butt for cheque 86: with a crossed out (and thereforeillegible) date, a partially illegible description referring to a "payment"to "Pradeep" comprising amounts of $3,089 (noted as for "8 Reagan")and $2,710 (noted as what appears to be "Bill paid")35 totalling $5,799,less $389.25 (noted as for "Ins"), totalling $5,409.75.(d) A corresponding Manukau Sanatan cash cheque (86) for $5,409.75made out to "P Chand" dated 12 January 2011.(e) The cheque butt for cheque 50: with the date 16 November 2010, adescription "Withdrawal 5175 Deposit National Acc. Paid To →", andan amount of $5,175.(f) A corresponding Manukau Sanatan cash cheque (50) for $5,175 dated16 November 2010 with a notation on the back of "Ashwin Pratap".(g) A further Manukau Sanatan cash cheque (75) for $5,175 dated9 November 2010 with a notation on the back indicating it was cashedby Pradeep Chand.[45] The Crown called evidence from Samiula Sharief, the accountant forApna Networks since 2003. He gave evidence that Apna Networks is a Hindi radiostation that runs 24 hours, seven days a week. In May 2014 Mr Leppan came to theoffice and met Mr Shah, the owner of Apna Networks. Mr Leppan provided Mr Shahwith some documents to look through. Mr Shah gave Mr Sharief the documents tocheck whether Apna Networks had ever received the amount shown in the documents.Mr Sharief checked the bank statement and receipts. He found no record of thepayment. Mr Sharief contacted Mr Leppan and advised him that the receipt thattotalled $7,969.75 (referred to at [43(b)] above) was a quotation and not a receipt, and35 This is not clearly legible.that Apna Networks had not received that amount. He also told Mr Leppan that theradio station had donated radio coverage services for the event.[46] The Crown also relied on Mr Leppan's interview of Pradeep Chand on 2 July2014. Pradeep Chand admitted that he signed the application form for the grant fromAotearoa Sports. He accepted he was involved in planning for the Diwali event andwas at a meeting of Manukau Sanatan (the minutes show he chaired the meeting) heldon 3 October 2020 when it was agreed to seek funding for this from charitableorganisations.36[47] Pradeep Chand was asked specifically about his involvement in the audit forthe grant. He said the treasurer and the secretary must have provided the auditdocuments. He was asked about the Apna Networks receipt. He initially said he didnot know who obtained and received the receipt. But then, having noted there was afax number on it, he said the secretary would have received it. He accepted he knewabout the receipt because it was presented at a meeting he attended.[48] He was asked about the document setting out what the grant was spent on. Hesaid he did not compile the document and did not know who had. He was referred tothe bank statement showing a payment to Apna Networks. He said he could notremember if he was involved in that but, if he was present at the meeting, then hewould have seen it.[49] He was asked about cheque number 86. He said that, if it was the one whereApna Networks gave a donation, then they gave the money back. Pradeep Chand wasasked if he signed the cheque. He said:Yeah, but on the butt like in this case, I think in one of the cases, I think thecheque was to Apna like because Apna gave back that cheque to us, like didn'ttake it, they gave it back in donation and that money was cashed by us and putin the I think we paid for something else. But that was donation from we took it as a donation from Apna. Understand?36 Pradeep Chand said that this was a big event and other groups were involved in it too. It was anall-day event, involving food stalls and cultural items, that finished at night with a big fireworksdisplay. He said that Phil Goff (Mayor), ministers, the leader of the opposition, members ofParliament and a huge crowd were in attendance.[50] It was put to him that the "receipt" document stated that $5,469.75 was paid toApna Networks as a "final payment" and, if it was not paid to Apna Networks, thenthe document was not true. Pradeep Chand said he thought that Manukau Sanatanshould have given the cheque to Apna Networks and should have then taken anothercheque from Apna Networks for the donation. It was put to him that thedocumentation was a false representation of what happened. Pradeep Chand said "Idon't think I don't know whether it is false or not but from my understanding ".[51] Pradeep Chand was asked about the cheque made out to himself. He said it"must be a repayment of some money that I had put in with the organisation, payingfor things and then I get it back". He said the organisation wrote a cheque that wassupposed to go to Apna Networks, but Apna Networks said take it as a donation, so itwas paid into his account for money that he was owed.[52] The Crown case relied on Pradeep Chand's admissions that he was involved inthe planning for the event, that he knew about the audit, and that he had cashed thecheque relied on in the reconciliation as evidence of payment to Apna Networksbecause Apna Networks was donating its services. The Crown case also relied on theevidence from Mr Sherief that Apna Networks did not receive the money.Defence at trial: charge 9[53] On charge 9, in closing to the jury, defence counsel noted that Pradeep Chandwas only a patron for Manukau Sanatan (that is, somebody who provided financialsupport and was a role model to the organisation). It was submitted that he had noinvolvement in accounting for the grant from Aotearoa Sports and could not be heldresponsible for any mistakes that were made in the reconciliation documents aboutwhich he had no knowledge.[54] It was submitted that Pradeep Chand's comments when interviewed by the DIAwere not admissions and reflected his clouded memory of what had happened fouryears earlier. It was submitted that his comments about the Apna Networks receiptbeing done wrongly resulted from suggestions made by Mr Leppan and thatPradeep Chand firmly believed that the Apna Networks receipt was genuine. It wassubmitted that the receipt was a receipt and Mr Sharief was wrong about it being aquotation. It was submitted that cheque number 86 had nothing to do with the Diwalifestival and that Pradeep Chand had been making mortgage repayments from his ownpocket and was later reimbursed from Manukau Sanatan's funds. It was also notedthat the amount of $5,469.75 in the receipt and the amount on the cheque weredifferent by $60. It was submitted that whoever did the cross-referencing for thereconciliation made a mistake and it had nothing to do with Pradeep Chand.Assessment[55] On appeal, Pradeep Chand again submits that he had nothing to do with thereference to cheque 86 on the reconciliation document that purported to be thereference for the payment to Apna Networks. He says cheque 86 was a legitimatepayment as part of Manukau Sanatan's repayments to him for the purpose of a propertyat 8 Reagan Road, Papatoetoe. He seeks to provide further support for his defence oncharge 9 that the payment to him of $5,409.75 was a legitimate payment to him andthat he did not know the funds had come from the grant from Aotearoa Sports.[56] He refers to his affidavit filed in support of his application for a dischargewithout conviction. In that affidavit he said that he won a large sum of money in 2000.He explained that Manukau Sanatan needed its own premises and tried unsuccessfullyto get a bank loan to purchase a property. Manukau Sanatan found a suitable propertyat 8 Reagan Road, Papatoetoe. As Manukau Sanatan could not afford to buy theproperty, it was bought in Pradeep Chand's name on 28 June 2010. Pradeep Chandpaid around $316,000 for the property. Subsequently, the bank approved a loan of$265,000 for Manukau Sanatan to buy the property. The property was then transferredto Manukau Sanatan and it repaid Pradeep Chand over time. A record of title,declaration of trust and other documents were annexed in support of this.[57] Pradeep Chand requires leave to adduce this evidence in support of his appeal.He relies on the fact that defence counsel at trial was stopped from asking anotherwitness about his financial position and his financial relationship with ManukauSanatan. That said, he accepts that the evidence is not fresh and could have beenadduced through another witness.[58] As well as being not fresh, we consider the evidence is also not cogent. Whileit provides support for Pradeep Chand's defence, as put to the jury, that the $5,409.76he received was a refund for money he was owed for the purchase of the ManukauSanatan property, that does not assist with the evidence relied on by the Crown —specifically, the evidence that Apna Networks donated its services to the festival andPradeep Chand's admissions to Mr Leppan that the money was taken as a donation.[59] As the evidence is not fresh nor cogent it is not in the interests of justice togrant leave to adduce it on appeal. Defence counsel put to the jury Pradeep Chand'sdefence that he was not involved in the audit, was legitimately paid $5,409.76, andthat his admissions to Mr Leppan were not reliable and came only in response to asuggestion put to him by Mr Leppan. We consider there was evidence on which a jurycould reasonably convict and there is no real risk of miscarriage of justice in relationto charge 9.[60] In relation to charge 3, Pradeep Chand submits that there was insufficientevidence on which the jury could convict him. He says there was no evidence that hehad any knowledge of Tavua's grant application or was involved in the auditreconciliation.[61] The Crown case relied on Bharat Kumar's statements to the DIA. As discussedabove, in those statements he explained Pradeep Chand's involvement in theapplication (in approaching him to provide a quotation) and knowledge that nouniforms were supplied (Pradeep Chand reminded him in a telephone call thatMangere Fashions received and banked a cheque and then he gave Tavua a chequeback, and also asked him not to tell Mr Leppan that no goods were supplied). TheCrown closed to the jury that they could find Pradeep Chand liable on the basis ofsecondary liability — that is, he was assisting Rakesh Chand. The jury's verdict wasspecifically based on secondary liability.[62] We consider it was for the jury to assess the reliability of Bharat Kumar'sstatements to the DIA as tested through his evidence at trial. It was also for the juryto assess whether Pradeep Chand's later attempt to have Mr Kumar tell the DIA thatthe uniforms had been supplied was relevant given that attempt occurred five yearsafter the audit documents were submitted. It was reasonably open to the jury to findthat Pradeep Chand knowingly assisted Rakesh Chand to falsely represent that thegrant had been used to pay Mangere Fashions for uniforms when no such uniformshad been provided.[63] We therefore dismiss Pradeep Chand's conviction appeal.Pradeep Chand's appeal against sentenceDistrict Court sentence[64] At sentencing, the Judge described Pradeep Chand's role as follows:37(a) Event 2 (charges 3 and 4): he introduced Rakesh Chand toBharat Kumar, facilitated the payment and refund arrangement, andasked Bharat Kumar to lie to the DIA inspector.(b) Event 5 (charge 9): he was the patron of the club, he signed the grantapplication and was involved in its planning, he dealt withApna Networks, he cashed the $5,175 cheque38 and was the recipientof the funds from the $5,409 cheque, he knew about the auditdocuments and had accepted this, and he knew the money never wentto Apna Networks, as he had also acknowledged.[65] Pradeep Chand applied for a discharge without conviction. Adopting thethree-step process for determining such applications, at the first step the Judgeassessed the gravity of the offending as "low to moderate".39 In doing so, she referredto Pradeep Chand's role, as discussed above. She noted that the unaccounted fundsrelating to his offending totalled $13,669.75 and there was no proof that he hadpersonally benefitted from the funds.40 She considered the gravity of the offending37 Sentencing notes, above n 6, at [24] and [28].38 We note that the Judge referred to the wrong cheque. As discussed earlier, there were two chequesmade out to Pradeep Chand. One of them was for $5,175 but the one that matched cheque butt 86was cheque 86, which was for $5,409.74. The Judge's reference to the wrong cheque was not,however, material. The point was that he had received the funds that the audit documentspurported to represent had been paid to Apna Networks.39 At [69].40 At [66].was mitigated by the absence of any previous convictions, his communityinvolvement, his financial contributions to charities and his support for his family.41[66] At the second step, the Judge considered the direct and indirect consequencesof a conviction were also "low to moderate".42 In doing so, she accepted that a directconsequence was that Pradeep Chand would be removed as a trustee of the EducationFirst Trust. However, she considered that he would still be able to assist that trust,both financially and with his time, even though he would no longer be a trustee.43 Shealso accepted that a conviction for dishonesty would have an impact on his ability torun his business including as to renewal of insurance for that business. She referredto affidavit evidence from an insurance broker that most insurance companies wouldeither immediately cancel, or decline to renew, the policy. As to general consequencesshe accepted that Pradeep Chand would suffer humiliation and embarrassment, andhave the stigma of a dishonesty conviction.44[67] At the third step, she considered the low to moderate consequences of aconviction were not out of all proportion to the low to moderate gravity of theoffending. She therefore declined the application for a discharge without convictionas it did not meet the statutory test.45[68] The Judge went on to adopt a starting point of 10 months' imprisonment forthe offending and to reduce that to seven months' imprisonment for personalmitigating factors discussed when considering the application for a discharge withoutconviction. She considered home detention was appropriate because ofPradeep Chand's contribution to the community and his low risk of reoffending. Sheimposed a sentence of two months' home detention on the s 220 charges and a fine of$500 on the obstruction charge.4641 At [67]–[68].42 At [71].43 At [70].44 At [71].45 At [72], referring to s 107 of the Sentencing Act 2002.46 At [73].Submissions[69] On appeal, Pradeep Chand submits that the Judge erred in her assessment ofthe proportionality as between the gravity of the offending and the consequences ofthe convictions. He submits the gravity of the offending can properly be categorisedas low. He emphasises his limited role and that he was not directly involved in thereconciliations. He also emphasises his age at the time of his sentence (66 years), thathe has no previous convictions, that he has lived a modest lifestyle assisting hiscommunity in New Zealand and Fiji, that for many years he volunteered his time andfinances to support Manukau Sanatan, and that there was no suggestion that the grantfunds were used for his personal benefit rather than the benefit of the community.[70] He submits that the proportionality assessment is not simply a matter ofcomparing labels attached to each consideration, such as low and moderate. Here,there were clear direct and indirect consequences of conviction. The directconsequences meant that he would need to resign as trustee and the viability of hisbusiness would be at risk. These were significant and adverse effects. Further, theindirect consequences were a "black mark" against his name in an otherwiseexemplary life and where there was no risk he would reoffend.Assessment[71] We consider there was no error in the Judge's consideration of the applicationto discharge Pradeep Chand without conviction.[72] On the facts accepted by the jury and as assessed by the Judge, Pradeep Chandhad been involved in facilitating documentation he knew to be false for the purposesof the audit of the grant for event 2, he knew about the false documentation being putforward for the reconciliation of the grant for event 5 and was involved in cashing thecheque that was ostensibly for Apna Networks but which was to be used to repaymoney owed to him. We agree with the Judge's assessment that the gravity of theoffending was low to moderate, taking into account the amount involved was relativelylow and it was not shown that the grant money was used other than for the benefit ofthe community, and taking into account his personal mitigating factors.[73] We consider that the removal of Pradeep Chand as a trustee of the EducationFirst Trust, the consequences of a dishonesty conviction for the renewal of insurancepolicies for his business, and the stigma of a dishonesty conviction were consequencesthat were proportionate to the low to moderate gravity of the offending.[74] We dismiss the appeal against sentence.Richard Kumar conviction appealCharges[75] Richard Kumar faced and was convicted of the following two s 220 charges:Charge 16 CRN 16092500068: Richard KumarTheft by a person in a specialrelationshipSection 220Crimes Act 1961That RICHARD KUMAR, between1 November 2012 and 6 September 2013, atAuckland, having received or having controlover property, on terms or in circumstances thatthey knew required them to account to any otherperson for the property, intentionally failed to soaccount.Particulars: Dealings with $30,000 granted byFour Winds Foundation to Shree SanatanDharam Pratinidhi Sabha Manukau BranchIncorporated in respect of grant application104239 as shown by submitting falsedocuments as part of the audit reconciliation forthat grant.Charge 18 CRN 16092500069: Richard KumarTheft by a person in a specialrelationshipSection 220Crimes Act 1961That RICHARD KUMAR, between14 November 2012 and 30 July 2013, atAuckland, having received or having controlover property, on terms or in circumstances thatthey knew required them to account to any otherperson for the property, intentionally failed to soaccount.Particulars: Dealings with $30,255.22 grantedby Infinity Foundation to Shree SanatanDharam Pratinidhi Sabha Manukau BranchIncorporated in respect of grant application310664 as shown by submitting falsedocuments as part of the audit reconciliation forthat grant.Appeal issue[76] On appeal, Mr Kumar submits that the Judge misdirected the jury on theelements of s 220 as they related to him and that the jury's verdict on those chargeswas unreasonable having regard to the evidence.The requirements of s 220[77] Section 220 of the Crimes Act 1961 provides:220 Theft by person in special relationship(1) This section applies to any person who has received or is in possessionof, or has control over, any property on terms or in circumstances thatthe person knows require the person—(a) to account to any other person for the property, or for anyproceeds arising from the property; or(b) to deal with the property, or any proceeds arising from theproperty, in accordance with the requirements of any otherperson.(2) Every one to whom subsection (1) applies commits theft whointentionally fails to account to the other person as so required orintentionally deals with the property, or any proceeds of the property,otherwise than in accordance with those requirements.(3) This section applies whether or not the person was required to deliverover the identical property received or in the person's possession orcontrol.(4) For the purposes of subsection (1), it is a question of law whether thecircumstances required any person to account or to act in accordancewith any requirements.[78] Charges 16 and 18 were of failing to account (s 220(1)(a)). Under s 220(1)(a),it is the person who has received or is in possession of or who has control over theproperty that must know of, and who must have, the requirement to account to anotherperson. The following emphasised words from the section make this clear: any person who has received or is in possession of, or has control over,any property on terms or in circumstances that the person knows require theperson to account to any other person for the property who intentionally fails to account to the other person as so required [79] A clear and accurate statement of the elements is set out in Sullivan v R.47 Thatwas a case concerning s 220(1)(b). Heath J said:[456] In order to succeed, the Crown must prove beyond reasonable doubtthat the particular accused:(a) Had control over the investors' funds;(b) Was subject to an obligation to deal with those funds in accordancewith the requirement of some other person;(c) Had knowledge of that particular obligation; and yet(d) Intentionally dealt with the funds in a manner that he knew andintended to be in breach of that obligation.(footnotes omitted)[80] Adjusting that statement for a case concerning s 220(1)(a) the elements theCrown was required to prove for each of charges 16 and 18 were:(a) Mr Kumar had control of the grant funds from Four Winds/Infinity;(b) Mr Kumar was subject to an obligation to account toFour Winds/Infinity for those funds;(c) Mr Kumar knew of that obligation; and(d) Mr Kumar intentionally dealt with those funds in a manner that he knewand intended to be in breach of that obligation.[81] The first and second of these elements are of particular relevance forMr Kumar's appeal. As to the first element, Heath J said:[459] A person who has "control" over investors' funds has the legal abilityto determine how they should be applied. Often, the fact that an accused is adirector of a company will lead to an inference that the ability to "control"application of the funds exhibited. But the mere fact that someone holds officeas a director does not mean that "control" has been proved. A moresophisticated analysis is required.47 R v Sullivan [2014] NZHC 2501. See also Tallentire v R [2012] NZCA 610, [2013] 1 NZLR 548at [51].[460] Conversely, it is possible for a non-director to have control over theuse of funds. For example, a person who acts as either (what are commonlycalled) a de facto or shadow director may fall into this category of person.Further, control may be exercised by an executive who has authority to do soWhether a particular accused has "control" over investors' funds for thepurposes of s 220 is fact dependent and requires consideration in the contextof each specific case.(footnotes omitted)[82] Similarly, in McGurk v R this Court described as "adequate and accurate" thefollowing trial Judge's direction:48To have control over the proceeds from the gaming machines means to be ina position to lawfully determine or decide how those proceeds are to be dealtwith". The person said to be in control may not be the only one who controlsthe use to which the proceeds are put. Nor does the person have to physicallydeal with the proceeds, for example, actually bank them, to be in control ofthem.[83] As to the second element, as this Court said in Nisbet v R:49[13] Liability cannot arise under s 220 unless the circumstances requiredthe accused to deal with property in accordance with the requirements ofanother person. Section 220(4) provides that it is a question of law whetherthe circumstances give rise to that obligation on the part of the accused.Questions of law are the province of the trial judge and not the jury.Evidence charge 16[84] Charge 16 related to event 11. Event 11 was one of two applications made todifferent organisations for funding related to the 2012 Diwali festival of lights.Event 11 was an application by Manukau Sanatan to Four Winds. The "main contactperson" stated on the application was Vijendra Prasad, Interim Secretary.The application was for a total amount of $99,119 details of which were set out in anattached summary.[85] The application form stated that it was a condition of the application thatfunding would be allocated for the purposes stated and that any deviations or requestsfor reallocation of funding or change of supplier of goods or services must be made toFour Winds in writing. The application disclosed that an application for the same48 McGurk v R [2015] NZCA 148 at [80]–[81].49 Nisbet v R [2011] NZCA 285, [2011] 3 NZLR 4. See also R v Sullivan, above n 47, at [457]–[458].amount was also being made to Infinity. Rakesh Chand, as organising chairman, andVijendra Prasad, as secretary, signed the application confirming their consent to theaudit process in which they would be asked to provide invoices showing that thefunding was spent on the purpose for which it was applied.[86] Included with the application was an itemised quote from the Rock Factorydated 4 October 2012 totalling $16,019.50. This was to cover sound gear, a stage andmarquee and associated costs based on a two-day event. It was not suggested that thiswas anything other than a quote provided in good faith by the Rock Factory eventhough the festival was only ever intended to be a one-day event.[87] A grant of $30,000 was approved on 25 October 2012 and paid to ManukauSanatan on 1 November 2012. The funding was approved for the following purposes:sound system, stage and marquee (the Rock Factory quote) $10,000; generator$10,000; and soccer tournaments, set up and management, including up to $1,000 fortrophies, $10,000. The schedule of approved costs noted that "the funding providedmust be used to purchase only the items listed".[88] The event took place on 4 November 2012. An audit reconciliation was signedby Vijendra Prasad and received by Four Winds on 12 June 2013. The reconciliationschedule included a payment said to have been made to the Rock Factory on5 November 2012 for $10,185. Included with the schedule was an itemisedRock Factory invoice dated 4 November 2012 for $10,185. There were three items onthe invoice (sound equipment and management, storage and marquee hire, and labourand transport) that together totalled $13,039.96. A further item on the invoice stated"DISCOUNT - Less some sound equipment, staging and management as not allrequired - as agreed with Richard (LESS $4183.43+GST = $4810.95 discounted)".A handwritten notation indicated a payment by cheque number 422 on5 November 2012.[89] The focus of charge 16 was accounting in relation to the Rock Factory. TheCrown submitted Manukau Sanatan had obtained an inflated quote from theRock Factory and that Richard Kumar was involved in a receipt and refundarrangement with the Rock Factory for the purposes of the audit.[90] The Crown called evidence from Michelle Klassens from the Rock Factory.She gave evidence that very close to the event the Rock Factory was told that the planhad changed and it was now to be a one day event. She said her husband attended theevent and did the work and received a cheque on the day for $10,185. She then spokewith Richard Kumar who dictated to her "word for word" what to include in theitemised 4 November 2012 invoice totalling that sum. She provided this invoice tomatch the cheque that her husband had received while also including a refund of$4,165 on the basis that the $10,185 amount was too much for the services provided.She said that Richard Kumar directed her to refund the money to NZ Fiji Sanatan AFCas a donation to the football club.[91] Ms Klassens' evidence was corroborated by related correspondence anddocuments. On 13 January 2013 the Rock Factory emailed Richard Kumar requestingthat he send to them a tax invoice/receipt for the agreed amount of $4,165 so that theRock Factory could send a cheque to his nominated address or the transfer could bemade online. The Rock Factory followed up this request on 2 April 2013. NZ FijiSanatan AFC then provided an invoice for $4,165 dated 27 March 2013 with thedescription "As agreed over the phone. Re donation to the above association [please]payment within 7 days would be much [appreciated]". An email from Richard Kumarwas sent to the Rock Factory on 10 April 2013 providing the account number forNZ Fiji Sanatan AFC and requesting the transfer that day. A cheque for $4,950 waswithdrawn from NZ Fiji Sanatan AFC's bank account two days after the Rock Factorycheque for $4,165 was deposited.[92] Ms Klassens was interviewed by the DIA. The Crown referred to her evidencethat, soon after this interview, Richard Kumar telephoned her to ask if she had talkedto Mr Leppan about the refund. The Crown submitted to the jury that this phone callindicated that Richard Kumar knew the arrangement with the Rock Factory was wrongor unlawful.[93] The Crown also relied on the DIA's interview of Richard Kumar. Reportedlyhe initially said that all services were provided by the Rock Factory as quoted. Whenshown the handwritten invoice for the $4,165 donation, he agreed that the receipt wasin his handwriting and that he would ask for donations from service providers. Hewas told of Ms Klassens' account that he had directed her to return surplus funds as adonation. He denied that it was a refund and said he did not recall asking her to refundthe money as a donation. He acknowledged that he had called Ms Klassens once hewas aware of the DIA investigation.Evidence charge 18[94] Charge 18 related to event 12,50 which was also for the 2012 Diwali festival oflights. This was an application by Manukau Sanatan to Infinity. The "main contactperson" stated on the application was Vijendra Prasad, Interim Secretary. The"consent to audit" was signed by Rakesh Chand, Chairman, and Vijendra Prasad,Secretary, on 8 October 2012. The application disclosed that an application toFour Winds had also been made.[95] The application was for $99,119.85. A summary was provided showing abreakdown of the items to be covered by the grant. The supporting information waslargely the same as that provided for the Four Winds application. It included a quotefrom Boom Boom Fireworks. The quote stated that it was prepared for ManukauSanatan (Richard Kumar). It was dated 2 October 2012 and was for $17,238.50.[96] A grant of $30,255.22 was approved on 30 October 2012 and was received byManukau Sanatan on 14 November 2012. The grant was provided for the followingpurposes: radio media, $9,565.22; fireworks, $14,990; bouncy castle/merry-go-round,$2,500; venue hire, $2,200; and trophies – Diwali soccer tournament, $1,000. Theschedule of approved costs noted that "the funding provided must be used to purchaseonly the items listed".[97] The submission of documents for the audit process was late. On 30 July 2013Vijendra Prasad, Secretary for Manukau Sanatan, wrote to Infinity apologising for thelate submission of receipts and invoices. Attachments to this letter included:(a) An audit reconciliation form showing payments to: Apna Networks($10,235.22); Boom Boom Fireworks ($4,750); Boom Boom50 As noted earlier, there were 11 events, referred to as events 1–8 and 10–12 in the Charge List.Charges in relation to event 9 related to other defendants and were not part of the trial.Fireworks ($10,240); Mangere Pack Sports ($2,200); and Trophies PlusEngraving ($1,000).(b) A receipt dated 19 September 2012 from Boom Boom Fireworks toManukau Sanatan for $14,950 for a commercial fireworks display foran event on 4 November 2012. The receipt included a handwrittennotation "6/11/12 CHQ 426 $10,240.00" and "20/11/12 442$4,750.00".(c) A Manukau Sanatan bank statement for the period5-12 November 2012 showing a withdrawal of $10,240 on6 November 2012 by cheque 426. The particulars, provided inhandwriting, were "Boom Boom Fireworks".(d) A second Manukau Sanatan bank statement for the period4-11 February 2013 showing a withdrawal of $4,750 by cheque on5 February 2013 and the particulars, in handwriting, of "Boom BoomFire".(e) A cheque (442) dated 20 November 2012 for $4,750 made out toBoom Boom Fireworks and a corresponding cheque butt with the samedetails.[98] The Crown case against Richard Kumar was similar to that for charge 16. Itrelated to the audit documentation for Boom Boom Fireworks. The Crown calledevidence from Richard Mangos and Rikki-Maria Kare-Ariki from Boom BoomFireworks.[99] Mr Mangos gave evidence that he provided the quote. He remembered the joband that Ms Kare-Ariki worked on it. Ms Kare-Ariki was a qualified and experiencedpyrotechnician who had worked at Boom Boom Fireworks for eight to nine years. Shegave evidence that, from the outset, she was asked to make a display that was worthabout $3,500–$4,000 and her preparation was to that end. It was necessary to get acertification for the display. That certification was obtained on 29 October 2012.The Crown submitted that a comparison between the pyrotechnics approved on thatcertification — which, the Crown said, was issued in anticipation of a $3,500–$4,000display — with the pyrotechnics on the quote dated 4 October 2012 provided toManukau Sanatan, indicated that the certification was for a much smaller display thanfor that which was quoted.[100] Mr Mangos also gave evidence that he recalled getting paid for the event. Hesaid that he was overpaid $6,000 for the event and that Richard Kumar had asked himto refund the overpayment and to record it as a donation. Richard Kumar gave thebank account number into which the $6,000 was to be deposited.[101] The Crown referred to Richard Kumar's interview by the DIA about thistransaction. He was asked about an amount of $6,000 that was paid from NZ FijiSanatan AFC to Manukau Sanatan on 19 February 2013. He said that NZ Fiji SanatanAFC is all part of Sanatan and that, if Manukau Sanatan does not have enough money,NZ Fiji Sanatan AFC transfers money to it. He said the money might have been forthe mortgage repayments or other fundraising. He admitted that he had provided theNZ Fiji Sanatan AFC bank account for Boom Boom Fireworks and had requested thedonation. He said he was authorised by the members and the president. The Crownsaid that his knowledge about Manukau Sanatan's obligations to account for refundscould be inferred from the fact that he ensured the refund was paid to NZ Fiji SanatanAFC's account rather than Manukau Sanatan's.[102] The Crown case was that Richard Kumar knew about the Boom BoomFireworks's quote being hugely inflated and that it would be used by Manukau Sanatanto accompany the application for a grant. It submitted that Boom Boom Fireworkscould not have explained the discrepancy between the number of products in the quoteand the certification and that Mr Kumar must therefore have been complicit in theinflated quote. The Crown relied on Mr Mangos' evidence as to the $6,000 refundpaid to NZ Fiji Sanatan AFC at Richard Kumar's request.Defence at trial[103] The defence for Richard Kumar was that the s 220 charges required that hehave "control" over the grant, that there were circumstances requiring him to accountfor it, that he was aware of those circumstances, and that he deliberately failed toaccount for the money. Defence counsel submitted to the jury that he did not have thatcontrol. This was because: Manukau Sanatan completed the application;Richard Kumar was not an executive member of Manukau Sanatan or NZ Fiji SanatanAFC and could not bind them to anything; and he was not a signatory on their bankaccounts and so was not able to sign cheques for them.[104] Defence counsel submitted that Richard Kumar was simply a coordinator andcontact point for the 2012 Diwali festival of lights. It was submitted that he obtainedquotes and invoices and forwarded them to the relevant people and that was the extentof his involvement. It was submitted that, because Richard Kumar did not sign theapplication forms for events 11 and 12 or any event, he was not on notice of the termsand conditions set out on those applications. As he told the DIA, he paid the moneyto NZ Fiji Sanatan AFC because he was told to. He also told the DIA that he did notremember asking Ms Klassens to refund the money as a donation.[105] Defence counsel also submitted that the donations were separate transactionsrather than refunds. He submitted that, when the 4 November invoice from the RockFactory was provided, Ms Klassens knew the event was for one day and that ManukauSanatan was simply paying the amount invoiced. He referred to other evidence fromMs Klassens that she had agreed that $10,000 was a reasonable price for the job. Hesubmitted that, if she felt it was too much, there was no evidence that she toldMr Kumar how she felt. As for Boom Boom Fireworks, he referred to Mr Mangos'statements to the DIA to the effect that the cost of the show was less than the invoicebecause there was nothing wrong with ripping these people off and he could chargewhat he wanted for a show. Defence counsel submitted that it was Mr Mangos, notMr Kumar, who inflated the invoice and it was Mr Mangos and not Mr Kumar whowas dishonest.Trial judge's rulings and directions[106] As noted earlier, Manukau Sanatan faced charges. During the trial the Judgewas required to rule on whether the actions of the defendants could be attributed to it.The Judge ruled that the actions of Rakesh Chand, Pradeep Chand and Vijendra Prasadcould be attributed to Manukau Sanatan. They were the decision-makers directingManukau Sanatan and were in charge.51 The Judge further ruled that the actions ofRichard Kumar could not be attributed to Manukau Sanatan. He was not a member ofthe executive and did not have authority in the organisation. Rather his role was akinto that of an employee.52[107] At the end of the Crown case, the Judge was also required to rule on whetherthe charges should be dismissed under s 147 of the Criminal Procedure Act 2011 onthe basis that a jury could not reasonably convict the defendant of them. The Crowndid not oppose dismissing charges 16, 17 and 18 against Manukau Sanatan.53 Thosecharges related to events 11 and 12 and were based on Richard Kumar's actions inrelation to the Rock Factory and Boom Boom Fireworks. As the Judge had ruled thathis actions were not attributable to Manukau Sanatan, a conviction against ManukauSanatan for those actions was not reasonably open to the jury.[108] The Judge was also required to rule on applications to dismiss the chargesunder s 147 on the basis that each of the defendants did not have control of the fundsin circumstances that required them to deal with the funds in accordance with therequirements of the grantors. The Judge ruled that the grant for each applicationinvolved a special relationship of the type referred to in s 220.54 She rejected asubmission that it was sufficient that, providing the grant money received was usedfor the event for which the application had been made, it did not matter whether thegrant had been applied to the particular invoices for which the grant had been made.55[109] Having made that ruling, the question of whether a particular defendant wassubject to that obligation depended on whether that defendant had control of the grantfunds and the requisite knowledge. The application to dismiss the charges againstRichard Kumar relied on the Judge's ruling on attribution. That is, he was akin to anemployee who had no control over the grant received from the grantors incircumstances requiring him to account for them. Rather, he was a "gopher" who51 R v Chand [2018] NZDC 24920 at [54]–[57].52 At [59].53 R v Chand [2020] NZDC 6960 at [5].54 R v Chand [2018] NZDC 25004 at [11]; and R v Chand, above n 53, at [68].55 R v Chand, above n 53, at [56].liaised with the suppliers with no authority over Manukau Sanatan's bank account orover completing and signing the reconciliation documents.56[110] The Judge rejected this application. She was satisfied there was sufficientevidence to infer that Richard Kumar had the necessary control and knowledge suchthat the jury could reasonably convict him as a principal. Alternatively, she wassatisfied that the jury could reasonably convict him as a party.57[111] In relation to event 11 the Judge relied on the following evidence:58(a) Richard Kumar was a founding member of Manukau Sanatan. He wasinvolved in obtaining the quotes for other events. He was present at thespecial meeting of Manukau Sanatan on 5 October 2012 whichdiscussed matters arising from an earlier meeting at which it had beenagreed to host the Diwali festival subject to the availability of grantsfrom funding institutions. He seconded the motion moved byRakesh Chand that the Diwali festival be held together with theDiwali Cup soccer tournament. As recorded in the minutes, he agreed,along with the treasurer, to "collate all the papers and lodge the samewith the Funders within one month from the date of the event".59(b) Richard Kumar obtained funds from the Rock Factory. This was eitheran inflated or misrepresented quote. He contacted Ms Klassens andtold her what to include in the quote. He directed her to refund themoney as a donation to the football club and to describe it as a donation.He confirmed the receipt was in his handwriting. The reconciliationdocuments were submitted to Four Winds after this refund was madeand did not refer to it. Mr Kumar asked Ms Klassens if she had talkedto the DIA about the refund after he was aware of the DIA investigation.56 At [92].57 At [94].58 At [95] and [96].59 The minutes also record that Rakesh Chand, as presiding chairman, "requested the Secretary,Mr Vijendra Prasad to lodge the application. Mr Prasad agreed to complete the Application Formsubject to the Chairman signing the main application".He initially told the DIA that the Rock Factory had provided all theservices as quoted when clearly that had not happened.[112] In relation to event 12 she relied on the following evidence:60(a) The circumstances set out in [111(a)] above for event 11.(b) Richard Kumar was involved in obtaining the Boom Boom Fireworksreceipt that was misrepresented in the reconciliation documents. Therefund for the overpayment to Boom Boom Fireworks was paid into anaccount given to Mr Mangos by Mr Kumar. Mr Kumar askedMr Mangos to record the refund as a donation. Mr Kumar said he wasauthorised to take these actions by the members and the President.[113] Consistent with this ruling, the jury question trail asked the jury to considerliability against Mr Kumar on the basis of liability as a principal or as a party. Thejury returned guilty verdicts on the basis of principal liability. For principal liabilityin relation to charge 16, the jury question trail asked:QUESTION 1 Are you sure that between 1 November 2012 and6 September 2013 Richard Kumar received or hadcontrol over the $30,000.00 grant from Four WindsFoundation?If yes Go to Question 2If no Find Mr Richard Kumar not guiltyQUESTION 2 Are you sure that it was in circumstances that requiredhim to account for the grant in accordance with therequirements of Four Winds Foundation?This is a matter of law that the Judge decides. Theanswer is yes. Go to Question 3.The requirements include:1. The information provided in theapplication form is true and correct.60 At [95] and [97].2. The funding must be used for thespecific purpose for which it was appliedand approved.3. The "cost breakdown", including thequotations, sets out the specific suppliersto be used and the cost of each item.4. Any deviations or requests forreallocation of funding or change ofsuppliers must be made to Four Winds inwriting.5. Funds to be accounted for by returningreceipts, and copies of bank accountspertaining to receipts and expenditure.6. Consent to audit by Four Winds.7. Invoices and receipts must be true andcorrect.8. Acceptance of payment is confirmationthat grant will be used for the purposestated.9. In the event of non-compliance with anyof the conditions, the full grant isrepayable.QUESTION 3 Are you sure Richard Kumar knew of thecircumstances that required him to account for thegrant in accordance with the requirements of FourWinds Foundation?If yes Go to Question 4If no Find Mr Richard Kumar not guiltyQUESTION 4 Are you sure that Richard Kumar knowingly andintentionally failed to account for the grant inaccordance with the requirements of Four WindsFoundation?If yes Find Mr Richard Kumar guilty as aprincipal [no need to consider nextquestion trail]If no Go to the next question trail.[114] Questions to the same effect were asked in relation to principal liability forcharge 18.[115] It can be seen that the Judge answered question two in the jury trail and thejury was not required to address it. That was consistent with s 220(4) that it is aquestion of law for the trial Judge and this Court's decision in Nisbet v R.61 Inexplaining this to the jury the Judge said:62[41] I direct you as a matter of law that each of the incorporated societieswere subject to the requirements of the foundations. Although, the grants weremade to the relevant societies, the defendants were in positions of power byvirtue of their office and their leadership roles, and or their decision makingabilities in relation to each of the society and the Events. Therefore, theobligations on the incorporated societies bound each of the defendantspersonally. This is reflected in question 2. [42] So you will see that for question 2, the answer is that this is a matterof law that I must decide and the answer to the question is, yes and those arethe requirements, and then you can move onto question 3. I need to make itclear that although I have made that decision as a matter of law, it is a matterfor you as to whether you are satisfied that any of the defendants received orhave control over the grant money which is the first question. So I determinewhat the requirements of the obligations are, but you get to decide whetherthey had control over those grants, and you get decide the answers toquestions 3 and 4.[116] As to what "control" meant (question 1 in the jury question trail), the Judgegave the following general direction for all the s 220 charges:63[43] Now while we are looking at question 1, I need to say something toyou about control because that is key to your determination in relation toquestion 1. It is something that the defence lawyers have raised during thecourse of this trial, and I think it is going to be a key issue for you.[44] The Crown must prove in terms of control that each defendant hadcontrol over the grant money in question. As I said, my finding in question 2does not affect your determination of question 1, you have complete freedomto decide the issue of control. A person has control over funds has the legalability to determine how the fund should be applied. For example, in thecontext of alleged misuse of company funds, the mere fact that someone holdsoffice as a director does not mean that control will be proved. In the case ofthe incorporated society, the mere fact that someone holds the office ofpresident or treasurer or secretary does not automatically mean that controlwill be proved. The question of control is fact dependent and requires yourconsideration in the context of this specific case.[45] Conversely, it is possible for someone who does not hold office to havecontrol over grant funds. In a number of cases, the Court has been satisfied,for example, that a company was really no more than an alto-ego of thedefendant and have treated the company as no more than an instrument of the61 Nisbet v R, above n 49, at [23].62 Emphasis added.63 Emphasis added.defendant. In this case, control is not straight forward. The money has passedto the relevant incorporated society with which the defendants are involved,you have to determine whether this is in fact, the reality of whether thedefendants personally controlled the incorporated society or whether theywere both in control.[117] As to knowledge (question 3 in the question trail), the Judge directed the juryin these terms:[46] I want to say something about knowledge. The defendant must knowabout the requirements allegedly breached. The Crown has to prove that eachdefendant knew there were terms of some kind affecting their freedom ofaction in relation to the grant in issue, however, the Crown do not need toestablish that the defendant knew the precise details of the obligation. Therelevant knowledge must be held at the time that the defendant exercisedcontrol over the grant.[118] The Judge directed the jury in relation to the last element (question 4 in thequestion trail) for all defendants, illustrating that direction with reference toRakesh Chand (that being the first of the jury question trails) as follows:[47] You will see from question 4 that you have to determine, are you surethat Rakesh Chand knowingly and intentionally failed to account for the grantin accordance with the requirements of Infinity Foundation. So as well asknowing about the requirements in question, the defendants must have failedto account for the grant in a manner that they knew and intended to be inbreach of that obligation. So they knowingly and intentionally or deliberatelyif you like breached that obligation.[119] The Judge went on to discuss the respective cases for the Crown and thedefence in relation to each event and each charge. The key aspects of the Judge'sdiscussion of events 11 and 12 in relation to Richard Kumar were:[114] For both Event 11 and 12, the Crown says that Mr Richard Kumar hadcontrol over the funds because of his involvement with Manukau Sanatan. [115] The Crown says that you should be satisfied based on that evidenceand his role that he [had] control over the funds, but again if you are notsatisfied of that, the Crown says that you can alternatively, find that he was asecondary party, and the Crown says that you can do this by finding that heprovided assistance to whoever it was in the Manukau Sanatan. That was theprincipal offender.[119] Mrs Cheesman [defence counsel] said that Richard Kumar was simplyan event co-ordinator. She said that even if you were satisfied that it wasa refund [rather than a donation], it does not automatically [follow] thatRichard Kumar is guilty of any of the charges. You must still be satisfied thathe had control of the grant. She said that he did not sign the application form,was not an executive member. He simply obtained the quotes and invoicesand forwarded them on to Manukau Sanatan. He had no knowledge of theobligations. [120] The factors relied on by the Crown for why it was said that Richard Kumar hadcontrol over the funds were those summarised by the Judge (and referred to at [111]and [112] above) in her ruling on whether the jury could reasonably find that he hadcontrol.64Was there a misdirection?[121] Richard Kumar submits that the Judge's ruling reflected in question 2 in thejury question trail treated the defendants equally in determining whether they weresubject to a special relationship. He submits this is evident from the Judge's directionat [41], set out above at [115]. He submits the trial Judge was required, as a questionof law, to determine whether the circumstances with which Mr Kumar was facedrequired him "to account or to act in accordance with any requirements of" anotherperson.65 He does not dispute that there was a relationship/obligation as betweenManukau Sanatan and the granting foundations. He does dispute that he held such arelationship/obligation. He submits that treating the defendants equally in this regardwas inconsistent with the Judge's ruling on attribution.[122] We agree that the Judge made a general ruling that the grant funds were subjectto a special relationship requiring that the funds be accounted for. We agree that thequestion was whether Mr Kumar was subject to that obligation. On the facts of thiscase, however, that was determined by whether Mr Kumar had control of the grantfunds, whether he knew of the obligation to account, and whether he failed to accountfor the grant in a manner that he knew and intended to be in breach of that obligation.[123] In other words, Mr Kumar was not subject to the obligation because he held anoffice within Manukau Sanatan or had agreed with Four Winds/Infinity directly thathe would be subject to that obligation. Rather, if Mr Kumar had control of the funds(that is the legal ability to control how those funds would be applied), then he must64 R v Chand, above n 53.65 Crimes Act, s 220(4).have been entrusted with that control by Manukau Sanatan through those that hadauthority to give it (namely those whose conduct was attributable to ManukauSanatan). In other words, the question of control was key as the Judge made clear.[124] The verdicts were consistent with the jury having understood the distinctionbetween taking steps in connection with the grant money on the one hand andaccounting for it and control of it on the other. The point had been emphasised forother defendants in relation to other events. For example, in relation to Ashok Kumarand event 3 the Judge summarised the defence position as follows:[77] Ms Feyen on behalf of Ashok Kumar accepted that he signed theapplication and the resolution. She spoke to you about his position assecretary. She accepted that he was a signatory to the Club's ASB bankaccount and that he held that position as secretary for about eight years. Shesaid, however, that he was not the treasurer. He had no assigned directresponsibility for the Club's financial accounts or its reports and that he wasnot the main contact person. He did not have any direct communicationswhether by email, phone calls or correspondence with Aotearoa SportsFoundation or any of the other foundations. The fact that he was a signatorywas not a position that he held by himself, there was another signatory to theaccount. There is no evidence, she says, that he knew that the South AucklandRangers quotation was false, and there is no evidence that he was involved inany of the officials from South Auckland Rangers including Mr Lal. He didnot obtain the quote and there is no evidence to say that he knew that thequotation accompanying the application was not genuine.[125] The jury returned not guilty verdicts for Anup Kumar and Ashok Kumar on allthe charges that proceeded to trial.66 That is consistent with the jury understanding thefactual analysis necessary to find that a defendant had control of the grant funds.Ashok Kumar was a signatory on the application but was not otherwise involved inany relevant way. Richard Kumar was not a signatory but a factual assessment wasrequired as to whether he had control of the grant funds provided to Manukau Sanatanin relation to events 11 and 12.[126] We also note that the jury was given the alternative of secondary liability toconsider. For charge 16 (and similar questions were asked for charge 18) the juryquestion trail asked:QUESTION 1 Are you sure that the principal offence occurred,between 1 November 2012 and 6 September 2013 an66 Some charges were withdrawn by consent.unknown person received or had control over the$30,000.00 grant in circumstances that required theunknown person to account for the grant inaccordance with the requirements of Four WindsFoundation, and that the unknown person knew ofthose circumstances and knowingly and intentionallyfailed to account for the grant?If yes Go to Question 2If no Find Mr Richard Kumar not guiltyQUESTION 2 Are you sure that Richard Kumar intentionally aidedthe unknown person in committing that offence,namely by aiding him in obtaining the receipt fromThe Rock Factory and arranging a refund forovercharged services?If yes Go to Question 3If no Find Mr Richard Kumar not guiltyQUESTION 3 Are you sure that Richard Kumar knew the essentialfacts of the offence to be committed by the unknownperson, namely that:a. The unknown person received or hadcontrol over the grant; andb. In circumstances that required him toaccount for it in accordance with therequirements of Four Winds Foundation; andc. The unknown person knew of thecircumstances that required him to soaccount; andd. The unknown person intended to fail toaccount for the grant in accordance with therequirements of Four Winds Foundation.If yes Find Mr Richard Kumar guilty as apartyIf no Find Mr Richard Kumar not guilty[127] If the jury had determined that Mr Kumar was not subject to a specialrelationship with Manukau Sanatan and did not have control of the grant funds, thenit is clear that someone else within Manukau Sanatan was subject to the relationshipand had that control. It is also clear that Mr Kumar's actions in relation to the paymentand refund arrangements with the Rock Factory and Boom Boom Fireworks assistedin the failure to account in accordance with that special relationship. If the jury hadbeen misdirected in relation to questions 1 and 2 on principal liability in relation toMr Kumar (which they were not), the jury's answers to questions 3 and 4 on principalliability (which were not affected by any misdirection) would have inevitably led to aguilty verdict on the basis of secondary liability. In other words, even if there was amisdirection as Mr Kumar submits, a conviction on the charge was inevitable giventhat the jury was sure that Mr Kumar knew of the obligation and intentionally actedcontrary to that obligation.Was the verdict unreasonable?[128] Richard Kumar submits that his work for Manukau Sanatan did notautomatically transfer Manukau Sanatan's obligations (to account to the foundationsfor the grants) to Mr Kumar personally. Mr Kumar submits that a defendant has thoseobligations if the company is in reality no more than the alter ego of the defendant.This is in contrast with the position of an employee of a company. Mr Kumar submitsthat he was in the same position as an employee. While he did undertake some workin relation to the events and the collating of documents for the grant applications, hedid not have sufficient control of Manukau Sanatan for the obligations imposed on itto bind him personally.[129] Mr Kumar submits that the evidence was that he passed invoices toManukau Sanatan for payment and that he passed cheques to the suppliers. He submitsthat this, in itself, is not improper as the payment of invoices to the approved suppliersassociated with the Diwali festival was the purpose of the grants. He submits that thisis insufficient to prove he had control of the funds. He was effectively just themessenger.[130] He submits that he also did not exercise the requisite level of control in relationto the money that came back from Rock Factory and Boom Boom Fireworks. Whilehe directed the parties to make payments into the account of NZ Fiji Sanatan AFC, ashe said in the DIA interview, he did this at the direction of Manukau Sanatan. He wasnot a signatory to the bank account of NZ Fiji Sanatan AFC and had no legal power toaccess the account and the money sent there. He submits that true control remainedwith Manukau Sanatan as the owner of the accounts through which the money passed.[131] He submits there was insufficient evidence that he was aware of the need toaccount for the grant funds. This obligation, together with the need for approval tochange suppliers or quotes, was part of the details of the grant. He submits that theaudit process goes beyond what someone might know. He submits that the process ofcollecting and collating the quotes is separate to the control and accounting of the grantfunds. The requirement to account for the funds does not arise until after the fundingis approved and the funds are transferred. He submits that knowledge and involvementin the gathering of quotes cannot be equated with knowledge of what should happenwith the funds if an application for funding is successful. In summary, he submits theevidence is sufficient to infer that he knew about the grant process generally, but notabout the requirements to account for the grant funds or that there were limits on themanner in which they could be applied.[132] We consider there was evidence from which a jury could reasonably find thatMr Kumar had control over the funds. The evidence showed that Mr Kumar wasinvolved in obtaining Manukau Sanatan's gaming machine grants, dealing with thegrants and subsequently collating accounting paperwork for the audit reconciliation.The evidence was:(a) Mr Kumar was a member of Manukau Sanatan at the relevant time.(b) Mr Kumar was present at the relevant meeting of Manukau Sanatan forevents 11 and 12. At this meeting, the arrangements for the 2012Diwali festival were discussed. Mr Kumar seconded Rakesh Chand'smotion that the festival be held with a soccer tournament. It was agreedthat "Richard, and Treasurer would collate all the papers and the lodgethe same with the Funders within one month from the date of the event".(c) Mr Kumar was otherwise significantly involved with ManukauSanatan, being a founding member, attending meetings, movingmotions, and obtaining quotes on behalf of Manukau Sanatan fromservice providers for other events.(d) Mr Kumar confirmed in his DIA interview that: he gave ManukauSanatan a hand for big events; they all worked as a team; he, thesecretary and the treasurer paid the artists; his job was to hunt aroundfor artists; he gave receipts, called papers, was involved in flyers; hehanded cash to the performers; he issued an invoice; and heintermingled his personal cash with Manukau Sanatan's cash.(e) There was evidence that he personally had dictated the itemised invoiceto the Rock Factory for an inflated amount that corresponded with theamount that Four Winds had approved when making the grant, whileincluding a discount to reflect the actual services that were provided.(f) The Rock Factory agreed with Mr Kumar that it would refund theinflated payment received by way of a donation to NZ Fiji SanatanAFC.(g) There was evidence that the refund made by way of donation matchedthe "discount" shown on the false invoice as dictated by Mr Kumar.(h) The false invoice was submitted as part of the audit reconciliation.(i) Similarly, there was evidence that an inflated quotation by Boom BoomFireworks was prepared for Richard Kumar.(j) There was evidence that Richard Kumar was involved in anoverpayment to Boom Boom Fireworks and the refund by way ofdonation.[133] We therefore dismiss Richard Kumar's conviction appeal.Rakesh Chand's conviction appealCharges[134] Rakesh Chand was convicted of six s 220 charges, two s 228 charges and oneobstruction charge. His conviction appeal on the basis of expert handwriting evidencefocusses on two s 220 convictions and one s 228 conviction. He says that, because theprosecution relied on propensity reasoning, if the convictions on the charges in respectof which the handwriting evidence was relied upon are allowed, this would haveimpacted on the jury's assessment of the remaining charges.[135] The two s 220 charges that are the focus of the appeal on the basis of thehandwriting evidence are:Charge 6 CRN 15092505199: Rakesh ChandCRN 16092500062: Ashok KumarTheft by a person in a specialrelationshipSection 220Crimes Act 1961That RAKESH CHAND and ASHOKKUMAR, between 8 September and23 December 2010, at Auckland, havingreceived or having control over property, onterms or in circumstances that they knewrequired them to account to any other person forthe property, intentionally failed to so account.Particulars: Dealings with $31,807.24 grantedby Aotearoa Sports Foundation to TavuaCultural Sports Club in respect of grantapplication 43 as shown by submitting falsedocuments as part of the audit reconciliation forthat grant.Charge 15 CRN 15092505179: Vijendra PrasadCRN 15092505203: Rakesh ChandCRN 16092500055: Shree SanatanPratanidhi Dharam Sabha Manukau BranchIncorporatedTheft by a person in a specialrelationshipSection 220Crimes Act 1961That VIJENDRA PRASAD, RAKESHCHAND and SHREE SANATAN DHARAMPRATINIDHI SABHA MANUKAU BRANCHINCORPORATED, between 31 May 2012 and26 November 2012, at Auckland, havingreceived or having control over property, onterms or in circumstances that they knewrequired them to account to any other person forthe property, intentionally failed to so account.Particulars: Dealings with $25,000.00 grantedby Aotearoa Sports Foundation to ShreeSanatan Dharam Pratinidhi Sabha ManukauBranch Incorporated in respect of grantapplication 322 as shown by submitting falsedocuments as part of the audit reconciliation forthat grant.[136] The s 228 charge that is the focus of the conviction appeal is:Charge 11 CRN 16092500062: Ashok KumarCRN 15092505199: Rakesh ChandUsing a documentSection 228(1)(b)Crimes Act 1961That RAKESH CHAND and ASHOKKUMAR, on or about 5 November 2010, atAuckland, with intent to obtain any property,dishonestly and without claim of right used adocument.Particulars: The grant application 2222submitted to Cuesports Foundation, whichincluded a false quotation purportedly fromGuru Travel International Limited for$13,500.00.Crown case: charge 6[137] Charge 6 related to event 3. This was an application by Tavua to AotearoaSports. The "main contact person" stated on the application was Bobby Chand,President. Rakesh Chand is also known as Bobby Chand.[138] The application required that two people sign the "consent to audit". Thisconsent included a declaration that the information provided was true and correct.Rakesh Chand and Ashok Kumar signed this declaration on 20 August 2010.[139] As stated on the application form, funds were sought for the following purpose:Our sports and cultural club, going to Australia to compete in a soccerinternational event. We are short of airfares, uniforms and gears and trainingexpenses Cheapest quotes are attached [140] The application was for $34,067.24, which was to cover: airfares, $16,350;team gear and uniforms, $14,217.24; and training lights, grounds and clubrooms,$3,500.[141] A grant of $31,807.24 was approved and deposited on 8 September 2010. TheTavua bank statement for 8 September to 5 October 2010 showed the deposit of$31,807.24 withdrawn by four cheques: 15 September, $16,350; 24 September,$9,000; 24 September, $2,000; and 5 October, $4,400. The cheques correspondingwith each of these withdrawals were made out to "cash". Each cheque had twosignatories, that on the face of them appeared to be the signatures of Rakesh Chandand Ashok Kumar (the two signatories to the grant application). The first threecheques all had Rakesh Chand's name and driver's licence number on the back.[142] The Crown case was that the documents subsequently provided to AotearoaSports to account for the use of the funds were false. The Crown contended that theypurported to show the use of the funds in connection with a soccer tournament inAustralia in September 2010 but the club did not participate in any such tournamentat that time. The Crown case relied on the payment of $9,000 purportedly made toAK Silkscreen Printers for uniforms and the payments of $16,350 purportedly madeto Guru Travel for airfares.[143] The reconciliation documents included an invoice dated 22 September 2010from AK Silkscreen to Tavua for $9,000 for "supplied and print soccer jersey, shorts,bags, socks, caps, track pants & tops". A stamp indicated that the invoice was paid on23 September 2010. This paid date did not correspond with the bank statement thatshowed a cheque payment by Tavua for that sum on 24 September 2010.[144] The Crown called evidence from Ashok Kumar67 who owned AK Silkscreen.He confirmed that this document was a quote and not a receipt. He gave evidence thathe never provided the goods referred to in the document and he never received anymoney from Tavua for it. He was very clear that he "did not receive any cheque orany cash in this amount". He contrasted this with an AK Silkscreen invoice for event 2for which he received a cash cheque of $3,500.[145] As to the purported travel to Sydney, the reconciliation documents included thefollowing:(a) A signed Guru Travel receipt (described as "Receipt No: 3681Book 18") dated 20 September 2010 recording the receipt from Tavuaof $16,350 in cash for air tickets for a sports group to flyAuckland/Sydney/Auckland.(b) A duplicate of the above document but with handwritten notations"30 people", "to/from Sydney", and "23 to 28 September 2010".(c) An undated Guru Travel document addressed to Tavua recording a priceof $16,350 ($545 per person for 30 persons) for return airfares betweenAuckland/Sydney/Auckland for a sports group to attend an67 A different Ashok Kumar than the defendant.international event from 23 to 28 September 2010. Noted inhandwriting on the document was a signature, the nameChandra Kumar (director) and a cell phone number.[146] The evidence before the jury also included:(a) A receipt (number 90, from a receipt book with no letterhead) dated21 September 2020 for $8,070 cash received from Tavua.(b) An ASB Bank schedule that recorded a cash deposit of $16,550 madeon 22 September 2010 made up of $8,070 marked Tavua, and sixsmaller amounts marked "other".[147] The Crown called evidence from Chandra Kumar who was from Guru Travel.He had made statements to the DIA in 2014 and 2017. At trial he said he had healthand memory issues. The Crown relied on his statements to the DIA. The Crownpointed to his confirming to the DIA that the signature on the Guru Travel documentswith a price of $16,350 was his but saying that he had issued only an invoice and nota receipt. He said the travel that related to the invoice for $16,350 did not go ahead asthe tournament was postponed. He said that he recalled Rakesh Chand coming to hisGuru Travel shop with $16,350 in cash, wanting to pay for 50 airline seats. He recalledtelling Rakesh Chand that the airline seats were cancelled and that he could not supplyhim with all 50 seats. He also recalled telling Rakesh Chand that he could supply himwith seats to the amount of $8,070. He said that Rakesh Chand paid him $8,070 incash and he issued the receipt number 90 dated 21 September 2010. He said at nostage did he issue a receipt for $16,350 for airline tickets from Guru Travel.[148] The Crown said Chandra Kumar's statements that there was no tournament inSeptember 2020 were supported by Ashok Kumar and Rakesh Chand's travel records.These records showed that they went to Sydney from 2 to 6 December but took noother trips to Australia in 2010 or early 2011. The Crown submitted that there wasonly one trip, but two applications and two reconciliations and they both used falseGuru Travel documents. The Crown noted that several of the "Guru Travel receipts"documents used in the audits for grants had the same "Receipt No: 3681 Book 18"reference yet were seemingly for different events on different dates with different totalamounts. It was submitted that it could not have been the case that Guru Travel did infact receive $16,350 but applied it to later travel from 2 to 6 December, because thatwas inconsistent with Chandra Kumar's statements to the DIA and the reconciliationdocuments, which did not refer to travel in December.[149] The Crown also relied on Rakesh Chand's statements to the DIA where he:agreed it was his signature on the resolution; agreed he handled the audit documents;accepted he may have been involved in the Guru Travel document used in thereconciliation; admitted he cashed a cheque because Guru Travel wanted cash;accepted when Chandra Kumar's statement was put to him that he had only paid$8,000 and Guru Travel gave $8,000 back; and acknowledged that he may haveobtained the AK Silkscreen invoice.[150] The Crown submitted that Rakesh Chand was in control of and failed tohonestly account for the grant in accordance Aotearoa Sports' requirements. TheCrown submitted he provided fraudulent documents and accepted in his DIAinterviews that they were responsible for the provision of those documents.68Crown case: charge 11[151] Charge 11 related to event 6. This was an application by Tavua to Cuesports.The main contact person stated on the application was Bobby Chand.[152] The application required that two people sign the "consent to audit". Itincluded a declaration that the information provided was true and correct.Rakesh Chand and Ashok Kumar respectively signed this declaration on 5 and6 November 2010.[153] As stated in the application form, the application was for the Tavua soccer teamto travel to Australia "as they were the finalists at NZDIC last October".The application was for $29,839.88, which was to cover: Guru Travel, $13,500; soccersportswear, $14,039.88; and Mangere United, $2,300.68 This charge was also brought against Ashok Kumar. As noted earlier, he was acquitted of thecharge.[154] The documents submitted in support of the grant application included a signedGuru Travel document addressed to Tavua providing a price of $13,500 for "25 teammembers to participate in an IDC tournament held in Sydney, Australia" departing on2 December and returning on 6 December.[155] A grant of $19,653.15 was approved on 25 November 2010. The Tavua bankstatement showed that this was followed by outgoing cheque payments of $2,300,$5,103, $12,300, $300 and $150 on dates between 27 November 2010 and22 December 2010.[156] On 18 March 2011, Cuesports was chasing up the reconciliation, noting that itwas due within 30 days of the grant having been made. The reconciliation documentswere provided on or after 10 May 2011 on which date Rakesh Chand, as Tavua'spresident, apologised for the delay. The reconciliation documents included an auditreconciliation report dated 31 March 2011 signed by Rakesh Chand. This recordedexpenditure totalling $20,909.50 that included an amount of $13,500 paid toGuru Travel for return airfares to Australia.69 In support of the reconciliation, a signedGuru Travel receipt (recorded as Receipt No: 3681, Book 18) dated 28 November 2010recorded the receipt from Tavua of $13,500 paid with cheque number 307 plus $1,200in cash on that date.[157] The Crown relied again on evidence from Chandra Kumar. He told the DIAthat he did not issue the quotation. When asked about this document in Court, he saidthat it was not his signature on the document. He also said to the DIA thatRakesh Chand had come to him with $13,500 in cash saying he wanted to book25 seats to Sydney. He said he could not book that number of seats and so he gave allthe cash back to Rakesh Chand.[158] The Crown also relied on Rakesh Chand's statements to the DIA. He acceptedthat he signed the application for the grant, that he included the Guru Travel quote,and that he completed and signed the reconciliation report with the Guru Travelreceipt. When the DIA showed Rakesh Chand the statement from Chandra Kumar, he69 The other amounts were: $5,109.50 paid to Score Sportswear Ltd for team gear and strips; and$2,300 paid to Mangere United for ground and facilities hire.said that sometimes members purchased tickets on their credit card and they were thenreimbursed with cash, but he would have to come back to the DIA on the detail.70Crown case: charge 15[159] Charge 15 related to event 10. This was an application by Manukau Sanatanto Aotearoa Sports. The main contact person stated on the application wasVijendra Prasad, secretary.[160] The application required that two people sign the "consent to audit". Itincluded a declaration that the information provided was true and correct. Tworepresentatives signed this declaration on 24 May 2012.71[161] As stated in the application form, the application was for a culturalperformance using performers from the United States. The application was for$40,665, which was to cover:(a) travel: $16,500;(b) "Alpine Colour Print": $4,500;(c) video and photo promotions: $9,200;(d) Ramluz Sounds: $9,700;(e) Apna Networks: $6,670; and(f) hall hire – Samoan AOG: $3,795.[162] Quotes were submitted in support of this application. They included a quotefrom the Samoan Assemblies of God NZ Inc dated 24 May 2012 for $3,795 for hallhire on 27 July 2012 for cultural performances. They also included a quote fromRamluz Sounds dated 24 June 2012 for sound and lighting equipment totalling $9,700.70 The charge was also brought against Ashok Kumar. As noted earlier, he was acquitted.71 No names are provided with the signatures.[163] A grant of $25,000 was approved and deposited. Subsequently, a set ofdocuments was sent to Aotearoa Sports to account for the use of the funds. Theyincluded an audit reconciliation form purporting to show that the $25,000 grant wasspent as follows:(a) Guru Travel (air tickets): $13,080, 9/7/12;(b) Ramluz Sounds (sound equipment): $1,300 and $4,000, 1/8/12;(c) Alpine Colour Prints (posters, flyers and banner): $4,500, 25/6/12;(d) Apna 990 (radio advertisements and promotions): $6,670, 4/7/12; and(e) AOG Church (hire of hall): $1,200, 8/8/12.72[164] The reconciliation form was signed by Rakesh Chand on 26 November 2012.The form required that he confirm that the grant was spent in accordance with thespecific purpose detailed in the grant application.[165] Charge 15 related to the Ramluz Sounds documents. The reconciliationdocuments enclosed an invoice from Ramluz Sounds dated 1 August 2012 for $5,300made up of two payments of $1,300 and $4,000 and stamped as paid. The Crowncontended that this document was false as Ramluz was not paid $4,000 for providingsounds for the event.72 Charge 14 (one of the s 228 charges) related to the Samoan Assembly of God documents. Thereconciliation documents enclosed a receipt for $1,500 from the Samoan Assembly of God(cheque 420). The Crown called evidence from Luisa Vaifale. She gave evidence that she wasforced to provide the quote that was false. She said a number of men came to book the hall, paida deposit of $300 and then came back and pushed her (verbally) into creating the quote. She saidthe only item on the quote that was correct was the $1,500 hireage fee. She said that what she didwas wrong and she should not have done it but felt pushed to do it. She said that she includedextra charges for security, cleaning and rubbish bin hire because the men pushed her to write thoseamounts in and there was never any intention that those services would be provided. The defenceon this charge submitted that there was no dishonesty involved. Rather a quote for the full suiteof services relating to hiring the hall was sought, but when the grant was for less than the amountapplied for, the services obtained were trimmed back to the hireage fee and that was the amountthe Assembly of God received. Rakesh Chand was convicted on charge 14.[166] The Crown called evidence from Mr Ramlu. He gave evidence that RamluzSounds was his part-time business and that he did all his own paperwork. Hereportedly told Inland Revenue that his business had an annual turnover of about$5,000 per year (although he could not remember saying this when he was asked aboutthis in cross-examination), it was more of a hobby, and he had previously done jobsfor free. He confirmed that he had provided the quote for $9,700 submitted in supportof the grant application. He said that, despite what he had quoted, he only did thesounds for two events, one in Auckland and one in Hamilton, and got paid $1,300. Hesaid that he had not provided the handwritten invoice (stamped as paid) of the twoamounts ($1,300 and $4,000).[167] Mr Ramlu said that Rakesh Chand had telephoned him about a payment of$4,000 into his bank account that Mr Ramlu was to return to Vijendra Prasad, whichhe did. Mr Ramlu's evidence was supported by Manukau Sanatan's bank accountrecords, which showed $4,000 being withdrawn on 3 August 2012 and then the samesum immediately refunded.73 Similarly, Mr Ramlu's bank account records showed thereceipt of $4,000 on 3 August 2012 and the same sum paid out on 10 August 2012.[168] The Crown also relied on Rakesh Chand having accepted that he was involvedin the audit relating to event 10. Additionally, when asked by the DIA about the $4,000paid to Ramluz, he initially denied that that money was repaid. He later backtrackedand said that he would have to check because they do sometimes ask for donations.Defence at trial[169] In relation to charge 6, the defence submitted that it was clear from the ASBschedule that Guru Travel did receive $16,350 and Chandra Kumar's evidence that heonly received $8,070 should not be believed. The defence submitted that the moneywas used for 22 tickets that were issued in December for two teams to come over fromFiji to Auckland and there was no way that would have cost only $8,070. As toAK Silkscreen, it was submitted that Ashok Kumar may have received full paymentbut received part of this in cash. Reliance was placed on Ashok Kumar's acceptance73 The source is not identified.that he did not always put cash payments through his accounts and he and his wifeused cash payments for holiday funds.[170] In relation to charge 11, the defence relied on the evidence that there was asoccer tournament in Sydney that was to take place between 3 and 5 December 2010,that the Tavua team travelled to the tournament but it was ultimately rained off. WhileRakesh Chand accepted he had signed the grant application, it was not known whohad obtained the Guru Travel quotation. The defence submitted that Chandra Kumar'sstatements to the DIA and his evidence should be set aside as unreliable.[171] In relation to charge 15, it was submitted that Mr Ramlu's evidence should notbe accepted because the dates of the transactions did not match up with his account.The deposit was made with a bank cheque on 3 August, he withdrew the money on10 August and that did not match up with the $4,000 refunded to Manukau Sanatanon 3 August. The defence also submitted that there was an absence of evidence thatRakesh Chand was dealing with the documentation that was ultimately submitted aspart of the reconciliation.[172] The defence also made submissions about the absence of expert evidence inthe context of a trial that concerned whether crucial handwritten documents weregenuine. In relation to Chandra Kumar and Guru Travel in particular, the defencesubmitted that Chandra Kumar was not an honest witness and his evidenceflip-flopped so many times during the investigation and the trial that he was incapableof giving credible or reliable evidence at all. The defence submitted that the Crownought to have called other senior management or staff from Guru Travel and pursuedsearch warrants or production orders of Guru Travel and the defendants' computers tosee whether they had equipment capable of generating documents the Crown said werefalse or fraudulent.[173] The defence submitted that the DIA interviews were undertaken years after therelevant events, without Rakesh Chand and the others having substantive notice aboutwhat was going to be discussed. Rakesh Chand was left trying to think back to thoseevents. The defence submitted that the evidence before the trial was insufficient forthe jury to be sure that the charges were proven.[174] The defence also submitted that the various quotes were provided in supportof the grant application on the basis of what would be a dream event if all the fundingwas provided for that event. However, the cost of the event would ultimately need tobe amended depending on the funds received. The defence submitted that the fact thatthe quote was higher than the payment does not show dishonesty. It was suggestedthat the common receipt number on Guru Travel documents may have arisen from thehonest use of a previous document as a template and an honest and inadvertent failureto update the receipt number when doing so. The submission was also made that adishonest motive was not necessarily present if funding received for one event wasused for another event that took place at a later time.New evidence[175] Rakesh Chand seeks leave to adduce a statement of Linda Morrell dated11 June 2021.74 This statement sets out the evidence she would give in court as aforensic document examination and handwriting expert. This statement expressedMs Morrell's opinion on whether it was Chandra Kumar's signature on documentsrelevant to charges 6 and 11 and whether it was Mr Ramlu's signature on thedocuments relevant to charge 15.[176] Ms Morrell's examination involved a comparison of the signatures on theserelevant documents with other reference documents accepted as being the signaturesof Chandra Kumar and Mr Ramlu respectively.75 Her statement explained twolimitations with her examination of these documents. First, all of the documentsprovided to her were copies rather than originals. While this enabled the "majordetails" to be assessed, a proper assessment of speed and fluency could not be madeand letter constructions and stroke directions could not always be fully determined.Secondly, she had "very limited reference material for each writer so the opinionsexpressed [were] a preliminary opinion based on material submitted to date".[177] For Mr Ramlu, the two reference documents were his formal written statementobtained by the DIA and the quotation for $9,700 dated 24 June 2012 that he accepted74 Criminal Procedure Act, s 335(2)(c).75 The statement also covered other signatories but Ms Morrell was unable to offer opinions on themand the focus of the appeal is not on those signatures.he provided. The comparison documents were a signature on the back of a cash chequefor $4,000 dated 10 August 2012 and the handwritten invoice for $5,300. Ms Morrell'sopinion on the former was that it appeared fairly fluent and contained some pictorialsimilarity with the reference signatures and "could" be a genuine signature. Heropinion on the handwritten invoice was:I cannot offer any opinion regarding the handwritten entries on [the receipt]as I have no known comparable handwriting by RAMLU.The signature at the bottom of [the receipt] appears unfluent and althoughpictorially similar to reference signatures, contains certain differences whichmeans I am unable to determine whether or not the signature is genuine or asimulation by another writer.[178] For Chandra Kumar, Ms Morrell's reference documents were Guru Travelreceipts dated 28 November 2010, two receipts dated 20 September 2010, and thereceipt number 90 dated 21 September 2010. The comparison documents were theGuru Travel document addressed to Tavua from 23 to 28 September 2010 (thedocument referred to above at [145(c)]), a Guru Travel receipt dated 7 April 2009 fortravel to Fiji in April 2009, and a Guru Travel quotation of $13,500 for travel to andfrom Sydney on 2 and 6 December for 25 people (the document at [154] above).Ms Morrell's opinion on these three comparison documents was that Chandra Kumarhad "probably" signed them.[179] Mr Mansfield accepted at the hearing that the evidence was not fresh becauseit was available to the defence if he had turned his mind to it.76 He says the evidenceis credible and cogent and leave to adduce it ought to be granted in the interests ofjustice.77 The Crown submits the evidence is not fresh, nor cogent and shouldtherefore not be admitted. We agree that the evidence is not fresh, the credibility ofthe evidence is not in issue, and the issue is whether it is cogent and should be adducedin the interests of justice. We therefore turn to assess its cogency and its potentialimpact on the safety of the convictions.76 He says the assessment he made at the time was that there was sufficient material to challenge thecredibility and reliability of these witnesses. He says that the need for expert handwriting evidencebecame more apparent during the trial.77 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]–[120].Assessment[180] As discussed above, charge 6 related to the submission of false documents inthe audit reconciliation for the grant received by Tavua for travel to Sydney for asoccer tournament in September 2010. The Crown proved this charge in part inreliance on the Guru Travel receipt purporting to show that $16,350 was paid forairfares for this travel. Ms Morrell's statement proceeds on the basis that the20 September 2010 receipt is accepted as having Chandra Kumar's signature and thedocument in question is the quotation. She confirms that the quotation is "probably"Chandra Kumar's signature.[181] However, charge 6, insofar as the Guru Travel documents are concerned,principally relies on the 20 September 2010 receipt provided in the reconciliation.That is the document that purports to show that the requested grant was applied to thepurpose for which it was sought and granted. Ms Morrell's evidence therefore doesnot assist on this point.[182] In any event, proceeding on the basis that Ms Morrell's evidence confirms thatthe 20 September 2010 receipt provided in the reconciliation was signed by ChandraKumar, the evidence is still not cogent. That is because it does not assist with whetherthe document is genuine. As discussed, several of the Guru Travel "receipts" fordifferent events contained the same reference number. Chandra Kumar's evidencewas that, despite the document recording the receipt of $16,350, that travel did notproceed. That evidence was consistent with the evidence that the Septembertournament was postponed and the travel records of Rakesh Chand andVijendra Prasad. Further, when it was put to him by the DIA, Rakesh Chand acceptedChandra Kumar's statement to the DIA that he was paid only $8,000 (as per the receiptfor the sum) and he gave that amount back.[183] While there were concerns about the reliability of Chandra Kumar's evidence,that was squarely before the jury and was for them to assess. In her summing up thetrial judge directed the jury as follows:In terms of the Guru Travel, you will remember Mr Chandra Kumar. You willremember that Ms Hogan [the prosecutor] was allowed to cross-examineMr Kumar and he was cross-examined at length by the defence lawyers. Youwill have to make a decision about whether you believe Mr Chandra Kumar.The Crown are urging you to rely on his original statements and the defenceare simply saying, you cannot rely on much that he said including thestatements that he made to Internal Affairs.[184] The key issue was whether Tavua had paid $16,350 for flights to Sydney for asoccer tournament as was represented in the reconciliation documents. The answer tothat had to be no, regardless of whether Chandra Kumar did or did not sign a receiptthat purported to show this, because that tournament did not proceed and the travel forthat tournament did not take place. It is irrelevant that there may have been travel fora later (rained-off) tournament in December because a separate application for thattravel was made and granted to cover that travel (event 6, which is the subject ofcharge 11).[185] Moreover, charge 6 also relied on the payment of $9,000 purportedly made toAK Silkscreen for uniforms. Ashok Kumar's evidence was that he had provided aquotation and not a receipt and he had never supplied the uniforms. Ms Morrell'sevidence does not assist with this evidence.[186] As to charge 11, this relied on the alleged false Guru Travel quotation for$13,500 submitted in support of the grant application made to Cuesports.Ms Morrell's evidence was that this quotation was "probably" signed byChandra Kumar. This is relevant to the charge because Chandra Kumar had said hehad not issued the quotation and it was not his signature, both when asked by the DIAand in evidence at trial. However, that the signature on the quotation probably wasthe same signature as other documents he accepted he had signed (for example, receiptnumber 90) does not materially assist with whether the quotation was genuine. Thereceipt that purported to confirm that the grant had been paid in accordance with thequotation relied on for the grant, bore the same reference — Receipt No: 3681,Book 18 — as earlier purported receipts for earlier grants. We are not satisfied thatMs Morrell's evidence would have had an impact on the jury's verdict on this charge.[187] As to charge 15, the Crown relied on the purported receipt of $5,300 (made upof $1,300 and $4,000), as shown on the handwritten invoice stamped paid, fromRamluz Sounds submitted with the audit reconciliation. Ms Morrell's statement is notcogent. The critical document for this charge was the Ramluz Sounds invoice.Ms Morrell was unable to assist with whether Mr Ramlu had written the details on theinvoice or signed it. The fact that the signature on the back of the cheque for $4,000could have been Mr Ramlu's was neither here nor there. Mr Ramlu's evidence wasthat he had received $4,000 into his account and he later withdrew that sum in cash tohand to Vijendra Prasad. His signature on the back of this cheque is consistent withthis. The defence sought to make something of the fact that the withdrawal was on10 August 2010 yet the refund into Tavua's bank account was on 3 August 2010.However, the source of the refund on 3 August 2010 was not identified and may havebeen made from some other source in anticipation of the refund from Mr Ramlu. Itwas not necessarily inconsistent with Mr Ramlu's account that he handed $4,000 cashto Mr Prasad on 10 August 2010. What Mr Prasad did with that cash received fromMr Ramlu is unknown. Importantly, this evidence was before the jury. The jury wassure that invoice for $4,000 (stamped paid) was false on the basis of this evidence andMs Morrell's statement could not have had any impact on that.[188] In summary, Ms Morrell's statement is not cogent on any of charges 6, 11 and15. We therefore do not grant leave to adduce this evidence and Rakesh Chand'sconviction appeal on those charges fails. This means that Rakesh Chand has notshown that a miscarriage of justice may have occurred on any of charges 6, 11 and 15that would taint his conviction on the other charges. His conviction appeal on theremaining charges therefore also fails.Vijendra Prasad conviction appealCharges[189] Vijendra Prasad was convicted of three s 220 charges. One of those chargeswas charge 15.78 He appeals that conviction on the same basis as Rakesh Chandappealed his conviction on that charge. He similarly appeals his conviction on theother two charges on the basis that an acquittal on charge 15 would have impacted thejury's assessment of the other two charges because the prosecution relied onpropensity reasoning.78 See above at [135].Crown case: charge 15[190] As discussed above, charge 15 related to event 10. Vijendra Prasad was themain contact person stated on the application. The grant was to cover a quote fromRamluz Sounds for $9,700, amongst other things. Vijendra Prasad signed the auditletter that included the reconciliation documents purporting to show, amongst otherthings, that Ramluz Sounds had been paid $1,300 and $4,000. The Crown relied onMr Ramlu's evidence that that he was paid $1,300 for the event and his evidence aboutthe $4,000 he received that he returned to Vijendra Prasad on instructions fromRakesh Chand. The Crown submitted that Vijendra Prasad's denial that he hadreceived that sum from Mr Ramlu was false.Defence at trial[191] For Vijendra Prasad, the defence submitted there was nothing to show that hehad any control of the grant monies, or had been involved in sourcing quotes or inobtaining or preparing the documents enclosed with the audit letter. It was submittedthat Mr Ramlu's evidence was not credible. It was suggested that it was not crediblethat $4,000 would suddenly turn up in his bank account and there was no independentcorroboration of his account of withdrawing $4,000 in cash and handing it toVijendra Prasad. It was suggested that the DIA had seized on Mr Ramlu's statementthat the quotation was not his when it should have made more careful enquiries ofMr Ramlu and the documentation.Assessment[192] As discussed above, Ms Morrell's statement is not cogent on charge 15. Wetherefore do not grant leave to adduce this evidence and Vijendra Prasad's convictionappeal on that charge fails. This means that he has not shown that a miscarriage ofjustice may have occurred on charge 15 that would taint his conviction on charges 8and 9. His conviction appeal on all three charges therefore fails.Vijendra Prasad sentence appealDistrict Court sentence[193] At sentencing, the Judge described Vijendra Prasad's role as follows:(a) Events four and five (charges 8 and 9): he was secretary of ManukauSanatan and signatory to the club's bank account, had signed the grantapplications, had sent in and was responsible for the audit documents,and knew that proper accounting principles and procedures were notbeing followed by the club. He dealt directly with some of the supplierorganisations that were involved in the events giving rise to thecharges.79(b) Event 10 (charge 15): he was secretary80 of Manukau Sanatan andsignatory to the club's bank account, had signed the grant applications,signed the $4,000 cheque to Mr Ramlu and received the $4,000 refundfrom him, and knew that proper accounting principles and procedureswere not being followed by the club.81[194] Vijendra Prasad sought a discharge without conviction. Adopting thethree-step process for determining such applications, at the first step the Judgeassessed the gravity of the offending as "low to moderate".82 In doing so, she referredto his role as just discussed. She referred to the unaccounted funds relating toVijendra Prasad's offending as totalling $23,569.75 and that there was no proof thathe had personally benefitted from the funds. She considered the gravity of theoffending was mitigated by Vijendra Prasad's age (65 years old), the absence of anyprevious convictions, his role as a Justice of the Peace, his "huge" communityinvolvement, his giving of his time and his money to charities, his cultural report, hisoffer to pay reparation and that, once the investigation was underway, he wrote a letterto Manukau Sanatan outlining his concerns about its accounting processes.8379 Sentencing notes, above n 6, at [27] and [29].80 As above.81 Sentencing notes, above n 6, at [33].82 At [85].83 At [83]–[85].[195] At the second step, the Judge considered the direct and indirect consequencesof a conviction would be "moderate".84 In doing so, she noted that Vijendra Prasad'slicence as an immigration adviser had been cancelled. On her assessment of theaffidavit evidence, that was because of the nature of Vijendra Prasad's conduct ratherthan the conviction itself. She took the same view of the impact a conviction wouldhave on Vijendra Prasad's small accounting and consultancy business — that is, it wasthe conduct that would be of concern to Inland Revenue if Vijendra Prasad applied torenew his tax agent status. She referred to Vijendra Prasad's health issues but was notcertain there was causal link between them and the court case and his resultingconvictions. She referred to Vijendra Prasad's concerns that he would be expelledfrom the temple he had founded and spent many years and money building, andprevented from participating in the management and support of it. She acknowledgeda conviction might have some impact on his involvement, but considered there wouldbe nothing to prevent Vijendra Prasad from continuing to support the temple that hewas passionate about.85[196] At the third step, the Judge considered the moderate consequences of aconviction were not out of all proportion to the low to moderate gravity of theoffending. In doing so she said:[90] Turning to the balancing exercise, I am particularly concerned aboutyour various roles and your employment which requires you to be very carefulwith documents and to be completely honest, and to disclose honestly. In thatrole, you are required to act with integrity. I am not satisfied that if you areconvicted the direct and indirect consequences of a conviction would be outof all proportion with the gravity of your offending [197] She therefore declined the application for a discharge without conviction as itdid not meet the statutory test.86 She adopted a starting point of 14 months'imprisonment and reduced that to 10 months' imprisonment for personal mitigatingfactors. She considered it was appropriate to substitute this with home detention. Shereduced the period of home detention from five months to three months because of84 At [89].85 At [86]–[88].86 Sentencing Act, s 107.Vijendra Prasad's offer to pay reparation. He was therefore sentenced to three months'home detention and ordered to pay reparation of $23,569.75.87Submissions[198] Vijendra Prasad submits on appeal that the gravity of the offending should havebeen assessed as low. The events for which the grants were sought were genuine, itwas not shown that the funding obtained was used for any purpose other than thoseevents and the defendants applied their own funds and significant voluntary hours tothem. The personal factors the Judge relied on showed that he had lived a highlyrespectable life and that the offending was an uncharacteristic "blip" in his later years.His letter to the Manukau Sanatan club referring to the dubious accounting practicesbeing followed and his offer of reparation show that he identified and sought to correctthis error.[199] Vijendra Prasad submits that the Judge correctly assessed the consequences ofa conviction as moderate. He submits that, although many of the consequences willlikely stem from his conduct rather than his convictions, a conviction itself is a "blackmark" particularly for someone with no previous convictions.88 He submits it achievesnothing for the community other than to show punishment for a mistake. Here, thecharges (theft by a person in a special relationship) on the face of them do not fairlyreflect his culpability because they suggest he personally benefitted from fundsentrusted to him when that is not the case.[200] Vijendra Prasad submits that the Judge erred in her proportionality assessment.He says this assessment is more nuanced than comparing labels of low to moderatewith moderate. Here, the experience and embarrassment of having stood trial andbeing found guilty was sufficient to hold him accountable. The low-level nature ofthe offending, the even lower likelihood that he would reoffend and the respectablefashion in which he had otherwise led his life more than offset any need to furthermark his conduct with convictions.87 Sentencing notes, above n 6, at [91]–[93].88 Referring to DC (CA47/2013) v R [2013] NZCA 255 at [44].Assessment[201] We consider the Judge correctly assessed the offending as low to moderate.We accept that Vijendra Prasad had significant personal factors that materially reducedhis culpability. However, he was directly involved in the false documentation reliedupon by the club and directly involved in receiving the return of the $4,000 paid toMr Ramlu.[202] It is accepted that the Judge correctly assessed the direct and indirectconsequences of the offending. We do not accept that she then simply compared onelabel with the other. She referred specifically to the lack of integrity the offendingdisplayed in circumstances where Vijendra Prasad's employment roles requiredcomplete honesty.[203] We acknowledge Vijendra Prasad's subsequent steps to correct his offending,especially the substantial offer of reparation. Given that he did not benefit personallyfrom the offending this was materially mitigating. The Judge recognised this inreducing his sentence to three months' home detention. There was no error in theJudge's approach.[204] We dismiss the appeal against sentence.Result[205] The Crown's application to dismiss Pradeep Chand's appeal for want ofprosecution is declined. An extension to appeal out of time is granted. PradeepChand's application to adduce further evidence is declined. Pradeep Chand'sconviction appeal is dismissed. His sentence appeal is also dismissed.[206] Richard Kumar's conviction appeal is dismissed.[207] Rakesh Chand's application for leave to adduce further evidence is declined.His conviction appeal is dismissed.[208] Vijendra Prasad's application for leave to adduce further evidence is dismissed.His conviction appeal is dismissed. His sentence appeal is also dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent