ADAMSON v R [2017] NZCA 175

ADAMSON v R [2017] NZCA 175 [11 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA641/2016[2017] NZCA 175BETWEEN SERENA JAYNE ADAMSONAppellantAND THE QUEENRespondentHearing: 13 March 2017Court: Cooper, Woodhouse and Collins JJCounsel: A J McKenzie for AppellantA Ewing for RespondentJudgment: 11 May 2017 at 2.15 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)[1] The appellant, Serena Adamson, was charged with using a BNZ loandocument dishonestly and without a claim of right with intent to obtain a pecuniaryadvantage. Following a trial in the District Court at Christchurch, beforeJudge Saunders and a jury, she was found guilty. Ms Adamson appeals against herconviction on the ground that there was a miscarriage of justice arising from amisdirection of the Judge to the jury on what the Crown had to prove to establishthat she had acted without a claim of right.Appeal out of time[2] There was a short delay in filing the notice of appeal, which has been adequately explained. The Crown does not oppose the application for an extension of time to appeal. There is an order accordingly.Background[3] In 2012 Mr Alan Gawler, a man with impaired hearing then living in Christchurch, was planning to move to Australia. He planned to let his Christchurch home and asked Ms Adamson, who is his niece and was working as a real estate agent, to assist him. Mr Gawler gave Ms Adamson access to, and authority to operate, his BNZ bank account.[4] Mr Gawler wanted to obtain a loan from BNZ to buy a car once he arrived in Australia and to meet some other expenses before he left New Zealand. He asked Ms Adamson to help him with this because of the difficulties he had in dealing directly with bank staff because of his impaired hearing. Ms Adamson told Mr Gawler that BNZ had declined to make a loan. After this, Mr Gawler said that he had not authorised Ms Adamson to apply for a loan or to use any loan funds.[5] BNZ had in fact made a loan offer of $15,000 in response to an application for a loan for that sum. Mr Gawler's bank account was credited with the loan sum of $15,000 on 19 October 2012. On that date Ms Adamson transferred $14,600 fromMr Gawler's account to her own account. $4,600 of that was then transferred toanother one of Ms Adamson's accounts. Ms Adamson's bank statements for thefollowing weeks record regular withdrawals of hundreds of dollars at local taverns,hotels, and at the Christchurch Casino. Mr Gawler said he had no knowledge of anyof this. He said he did not find out about the loan advance until some months afterhe had moved to Australia in December 2012.[6] Two documents relating to the loan were put in evidence through a BNZemployee. The first is a loan application dated 10 October 2012 bearing an apparentsignature of Mr Gawler (the loan application). Mr Gawler said he did not recognisehis signature and that he was not aware of the document. The second document is awritten loan offer to Mr Gawler from BNZ dated 18 October 2012 (the loan offer). This document is addressed to Mr Gawler at 13 Kingsley Street, Rolleston. This wasMs Adamson's address. Mr Gawler's home was elsewhere and his uncontradictedevidence was that he had never lived at 13 Kingsley Street. The loan offer bears anapparent signature of Mr Gawler, accepting the offer and dated 18 October 2012.Mr Gawler said he did not recognise his signature on this document.In cross-examination Mr Gawler was a little unclear as to whether he had signed anapplication for a loan, but his evidence in relation to the acceptance of the loan offer,just recorded, was quite clear.[7] The central factual dispute at trial was whether Ms Adamson had submitted, and therefore used, the loan offer without Mr Gawler's authority. The Crown case rested on the evidence already summarised.[8] Ms Adamson did not give or call evidence at trial. She had been interviewed on video by a police officer and the video was played to the jury. In the interview, Ms Adamson denied applying for the loan. She said she had gone with Mr Gawler to BNZ to support him, but he had made the application. Ms Adamson initially denied any knowledge of what had happened to the advance from BNZ. When confronted with the transfer to her own bank account she said she could not remember why she had made this transfer, but insisted there had been a reason.[9] At trial Ms Adamson's apparent contentions, through cross-examination, had shifted somewhat. It was put to Mr Gawler that he had authorised her to take $4,600 of the loan for herself, and that the balance was to be used to pay debts and property expenses of Mr Gawler. These propositions were rejected by Mr Gawler.The appeal[10] The charge against Ms Adamson, pursuant to s 228(1)(b) of the Crimes Act 1961, was that––SERENA JAYNE ADAMSON on or about 18 October 2012 at Christchurch with intent to obtain a pecuniary advantage, dishonestly and without claim of right used a document, namely a BNZ loan document.[11] The central proposition for Ms Adamson was that the Judge erroneously directed the jury to assess a claim of right in relation to the transfer of the loanmoneys from Mr Gawler's account to Ms Adamson's account and her subsequent use of the money in the way it was used. It was submitted that, given the charge, the Judge should have directed the jury to consider whether the Crown had established that Ms Adamson did not have any claim of right in relation to her use of the loandocuments.[12] The Crown accepted that the Judge did misdirect the jury on claim of right. The Crown submitted that there was nevertheless no miscarriage of justice because the correct direction would not have made any difference to the outcome.The Judge's directions[13] To determine whether the directions that were given may have affected the outcome, it is necessary to consider the Judge's directions on the element of dishonesty in the charge as well as on the absence of a claim of right.[14] At the beginning of his summing-up the Judge had distributed to the jury a four page document which contains a summary of what are described as "GeneralPrinciples" and "Specific Principles", which includes a summary of factors relied onby the Crown and the defence; and a question trail. The Judge told the jury that thisdocument had been discussed with counsel. In the course of his summing–up, theJudge referred the jury to relevant parts of the document and directed them orally.[15] The "Specific Principles" record the following on dishonesty:[3] The Crown must further prove that her use of the document was being undertaken dishonestly.The term 'dishonestly' means an act done, or omitted, without abelief that there was express or implied consent, or authority for the act from a person entitled to give such consent or authority.This ingredient requires you to decide what Ms Adamson knew or believed at the time the loan application was being submitted.The Crown says that while Mr Gawler had asked the Defendant to inquire about whether a loan was available to assist him with purchase of a car when he went to Australia, and to completerenovations, she was not acting honestly when she told him that there was no loan and went ahead with the application for her own benefit.The Defence says she was authorised to seek a loan, the Defendant knew about it and you cannot be sure that he did not know about, or assist the Defendant to complete the loan application in his name.Factors relied upon by the Crown are:1. No notification about loan sent out to Mr Gawler's residentialaddress in Aranui.2. A bank statement for the account and showing transactions relating to him were directed to be sent to her Rolleston address.3. No knowledge that funds had been advanced until August 2013.Factors for Defence:1. The documents includes [sic] details of what the funds were intended for and that Mr Gawler did wish to relocate and have renovations done.2. Poor memory by Mr Gawler as to what documents he signed.3. That Mr Gawler had spoken to Defendant, Ms Adamson, about managing his property.You must be sure that on or about 18 October when the loan document was actioned, that the Defendant, Ms Adamson, was acting dishonestly.If you are sure that she did tell him his loan had not been approved, was she doing so to hide from him the existence of the approval of $15,000 that could be used by her under the earlier authority he gave her in June 2012 to access the account.[16] The Judge's oral directions on dishonesty were similar, and emphasised that the jury had to be sure that Ms Adamson was acting dishonestly at the time she used the document.[17] The "Specific Principles" on claim of right were recorded as follows:[4] The final ingredient is that she must have acted without a claim of right.The term 'claim of right' is also defined as being a "belief" in theright to the property in relation to which the offence is said to have been committed.If the Defendant had an honest belief that she had a right to use the money being advanced as a loan to Mr Gawler at the time shetransferred it from his account to hers, then she would be acting with a claim of right.The Crown says that no honest belief can be established as evidenced by the fact she never advised him that the loan was granted, and that her actions in using the funds for her own purposes and not to do the renovations, or assist with payment of his debts or relocation expenses, shows that she had no claim of right.The Defence is that you cannot be sure as to what she did with the $4,600 transferred, and the Crown has not proved the other elements relating to Mr Gawler's knowledge of the loan application so that you would still find the Defendant Not Guilty.[18] The oral direction on claim of right was the same as the written direction except that the Judge expanded on the written summary of the defence case, as follows:[25] The defence says that you cannot be sure as to what she did with the $4600, and that is not a typo, there is a reference in the accounts to $14,600 being transferred by her initially and then $4600 transferred to another account and, as I understood it, Mr McKenzie [counsel for Ms Adamson] was saying that there is simply no evidence as to what happened to that, and it may have been applied or you cannot be sure that it was not applied for his benefit.[19] The Judge then turned to the jury question trail. It is as follows:Question TrailIn approaching this, remember the onus of proof remains on the Crown in respect of all elements.Question 1 Am I sure that the Defendant, Serena Adamson, used the BNZ loan application in the sense that she arranged for it to be processed by the BNZ to obtain a monetary advantage.If Yes, proceed to Question 2.If No, – Not Guilty. Proceed no furtherIf the Defendant arranged for the BNZ loan document to be submitted for consideration, then ask this question.Question 2 Am I sure that she was acting dishonestly in doing so?Here, consider all the factors mentioned by both Counsel to determine if she was acting dishonestly.If you are sure she was acting dishonestly on or about 18 October 2012, then proceed to Question 3If answer is No – then Not Guilty. Proceed no furtherQuestion 3 Am I sure that having knowledge that the loan had been approved the Defendant was acting without a claim of right in transferring the funds from Mr Gawler's account to heraccount?In determining if a claim of right existed, you need to consider if she honestly believed that she was authorised to use the funds in the way she did.If you decide she did have a claim of right, i.e. honest belief that she could transfer funds using the access code, and did not need to advise Mr Gawler what was done with the funds prior to his departure in December 2012, then you would find her Not Guilty.If you find that she did not hold an honest belief that she was able to apply the funds for the purposes she did, then the Crown has proved the elements of the charge and a verdict of Guilty.Analysis[20] We agree, as the Crown acknowledged, that there was an error by the Judge in his direction on claim of right. Section 228(1)(b) of the Crimes Act provides as follows:1228 Dishonestly taking or using document(1) Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—(b) dishonestly and without claim of right, uses or attempts to use any document.[21] The legal elements and issues in respect of dishonesty and claim of right related to use of the document, not the transfer of funds advanced after the documenthad been used, or the way in which Ms Adamson subsequently applied some of thefunds and her purpose in doing so. A belief that she was entitled to the moneyresulting from the loan was legally irrelevant.21 When Ms Adamson was charged, the applicable provision of the Crimes Act was s 228(b). This became s 228(1)(b) when subsection (2) was inserted, as from 7 November 2015, by s 10 of the Crimes Amendment Act 2015. The wording of the provision was not altered.2 R v Hayes [2008] NZSC 3, [2008] 2 NZLR 321 at [12].[22] Mr McKenzie, for Ms Adamson, submitted that a miscarriage of justice arose from this misdirection for reasons which may be summarised as follows:(a) The jury was not directed to consider the honesty of Ms Adamson'sbelief at the time that she used the loan document, but at timesfollowing the use of the document.(b) The jury was further misdirected to consider whether Ms Adamsonhonestly believed she could use the money for purposes that she did infact use it for. The jury was sent on an enquiry which was irrelevantto the essential elements of the charge.(c) The misdirection resulted in an unfair shift at the end of the trialwhich prejudiced Ms Adamson in her defence because, "if she was tobe called to question on later use of the funds, she could haveconsidered what evidence to call".[23] For the reasons that follow we are satisfied that the misdirection did not give rise to a risk that the jury would have found Ms Adamson not guilty had they received the correct direction. We agree with Ms Ewing's submission for the Crownthat the misdirection made no difference. This is because, in summary, the jury had to have concluded that the element of dishonesty was established and, on the facts of this case, the conclusion on dishonesty also negated the claim of right that the Crown was required to negate. We will elaborate.[24] The jury had to assess whether Ms Adamson used the loan offer documentdishonestly and there was no misdirection on dishonesty. Given the guilty verdict,the jury must have concluded that Ms Adamson did act dishonestly when she usedthe loan offer by accepting it and submitting it to BNZ.[25] As part of the conclusion on dishonesty, the jury must have decided that Mr Gawler did not authorise Ms Adamson to submit the loan offer acceptance to BNZ. There was no suggestion on the case for Ms Adamson, through her video interview or the cross-examination of Mr Gawler, that Ms Adamson honestlybelieved that she was entitled to submit the loan acceptance without Mr Gawler'sknowledge and consent: that is, that she had a claim of right despite the dishonesty.We agree with Ms Ewing's submission that, once the jury concluded that thedocument was used dishonestly, on the case for Ms Adamson the claim of right "wassimply not in play". The evidence called by the Crown to prove that Ms Adamsonacted dishonestly would also go to proving that she had no claim of right.The defence case rested, in the end, on the possibility that Ms Adamson had actedwith Mr Gawler's permission. That was a proposition which the jury plainlyrejected.[26] We are also satisfied that there was no unfairness to Ms Adamson on the ground that she did not have notice, before she elected not to give or call evidence, that there could be issues as to her use of the money, rather than her use of thedocument. Whether Ms Adamson had honestly believed that she was entitled totransfer the money to her own bank account and then use it was, as we have earliersaid, legally irrelevant in relation to any claim of right. But these matters were notfactually irrelevant. Evidence about her use of the money, and whether her use ofany of it may have been authorised by Mr Gawler, or whether she had a reasonablebelief that she could use some of it, was relevant to the essential and pivotal issue asto whether the Crown had established that she had acted dishonestly. Ms Adamsonwas not misled.[27] We also agree with Ms Ewing's submission that, rather than giving rise tounfairness, there was some potential benefit to Ms Adamson in the misdirection on claim of right. This is because the direction effectively gave Ms Adamson a defence that was not legally available to her. The direction indicated to the jury that it could find Ms Adamson not guilty if, notwithstanding dishonesty in the use of thedocument, the Crown had not negated a possibility that Ms Adamson honestlybelieved she was entitled to transfer the money to her own account and use it for herown purposes. But the jury must also have rejected this possibility.Result[28] For these reasons we are satisfied that the misdirection did not result in a miscarriage of justice. The application for an extension of time to appeal is granted, but the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent