Asgedom v R

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 18 July 2016
• Neutral Citation: [2016] NZCA 334
• Docket Number: CA451/2015
• Court: Court of Appeal
• Date: 18 July 2016

BETWEEN

Demissie Tefera Asgedom

Appellant

and

The Queen

Respondent

BETWEEN

Nebiyou Tefera Demissie

Appellant

and

The Queen

Respondent

[2016] NZCA 334

Court:

Randerson

Woodhouse

and Wylie JJ

CA451/2015

CA533/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction on a number of dishonesty offences relating to a scheme to scalp tickets for the Rugby World Cup (“RWC”) tournament in 2011 — one appellant appealed against his sentence of 12 months' home detention and 200 hours of community work — where the relevant tickets were recovered, the appellants were charged under s228 Crimes Act 1961“CA”(obtaining a document with the intention of obtaining a pecuniary advantage) — where the tickets were not recovered the appellants were charged with attempting to commit an offence under s228 CA — the Crown alleged that the appellants had been involved in a scheme in which unlawfully obtained credit card details were used by overseas persons to purchase the RWC tickets online — the appellants' role was to collect the tickets — search warrants were executed were tickets and cash were found at the appellants' homes — appellants alleged search warrants were defective because the information provide was general and they had not authorised a search of the cell phones seized — whether evidence obtained under the search warrants was admissible or should have been excluded under s30 Evidence Act 2006“EA”(improperly obtained evidence) — whether an Excel spreadsheet produced by the Crown under s19 EA (admissibility of hearsay statements contained in business records)) containing details of the purchases of all the RWC tickets alleged to have been acquired fraudulently was admissible — whether the verdict was unreasonable — whether the sentence was manifestly excessive.

Counsel:

R E Lawn for Appellant Asgedom

J R F Anderson for Appellant Demissie

K S Grau for Respondent

• A The appellant Mr Demissie is granted an extension of time to appeal.

• B The appeals against conviction by both appellants are dismissed.

• C The appellant Mr Demissie's appeal against sentence is dismissed.

• D To the extent the sentences imposed may not have been completed, this must now occur. The respondent may revert to this Court if any further directions on this are required.

JUDGMENT OF THE COURT

REASONS OF THE COURT

Given by Randerson J)

Table of Contents

	Para No
Introduction	[1]
Background facts	[7]
The grounds of appeal	[13]
The search warrants	[15]
The content of the application for the warrants	[17]
Search warrants-principles	[27]
Search warrants-discussion	[31]
The admissibility of the Excel spreadsheet	[38]
Background	[38]
Judge Harvey's rulings	[45]
The evidence at trial relevant to the admissibility of the
spreadsheet	[58]
Excel spreadsheet-discussion	[66]
Was Judge Harvey's verdict unreasonable?	[81]
Counsels' submissions	[86]
The evidence adduced by the Crown at trial	[88]
The appellants' evidence at trial	[89]
Mr Asgedom	[90]
Mr Demissie	[95]
Judge Harvey's findings	[101
Unreasonable verdict-discussion	[108]
Remaining matters	[116]
Refusal to discharge the appellants pre-trial	[117]
The ruling for a judge-alone trial	[118]
Refusal of an application for stay of proceedings	[123]
The form of the indictment	[128]
Mr Demissie's sentence appeal	[132]
Result	[140]

Introduction

1 After a judge-alone trial before Judge David Harvey the appellants were convicted on a number of dishonesty offences relating to a scheme to scalp tickets for the Rugby World Cup (RWC) tournament which commenced on 9 September 2011. 1

2 There were some 30 counts in the indictment brought jointly in each case against the appellants who are brothers. Where the relevant tickets were recovered, the appellants were charged with obtaining a document with the intention of obtaining a pecuniary advantage, contrary to s 228 of the Crimes Act 1961. In those cases where the RWC tickets were not recovered (or in one case were intercepted before they reached their destination) the appellants were charged with attempting to commit an offence under s 228.

3 The appellant Mr Demissie was found guilty of seven counts under s 228 and nine counts of attempting to commit an offence under that section. Mr Asgedom was found guilty of seven counts under s 228 and eight counts of attempting to commit an offence under that section. They were found not guilty of the remaining charges or, in some cases, were discharged during the trial.

4 The appellants were sentenced on 6 August 2015 to 12 months home detention and 200 hours of community work. 2

5 Both appellants appeal against conviction. Mr Demissie also appeals against his sentence.

6 Mr Demissie filed two separate notices of appeal, both out of time. The respondent did not oppose an extension of time to appeal and we order an extension of time accordingly.

Background facts

7 The Crown case was that the appellants were involved in a scheme in which unlawfully obtained credit card details were used by overseas persons to purchase the RWC tickets online through Ticketek, a ticketing agency. The appellants' role was to collect the RWC tickets and hold them until the overseas persons arrived in New Zealand. This was said to be a very large scale operation with the intention of selling the tickets for profit.

8 The police had become aware of a number of suspicious RWC ticket purchases at the beginning of September 2011 in the period immediately preceding the beginning of the tournament. A joint investigation was commenced between the New Zealand Police, Immigration and Customs Services.

9 Two men, a Mr Seed and a Mr Boku, arrived at Auckland airport from South Africa on 3 September 2011. Both had RWC tickets with them purchased via fraudulent credit card transactions. Mr Boku said he was intending to visit Mr Demissie. Both Mr Seed and Mr Boku were denied entry to New Zealand.

10 As part of the continuing investigation, search warrants were obtained for the appellants' homes in Auckland and were executed on 9 September 2011. Nine hundred and thirty one RWC tickets were found under Mr Demissie's house with a face value of over $500,000. A significant sum in cash was also located. Nine RWC tickets were located at Mr Asgedom's home. In addition, Customs intercepted a package containing 114 RWC tickets bound for Mr Asgedom's address with a face value of over $50,000. Cellphones associated with the appellants were also seized.

11 The RWC tickets had been obtained by online purchases through the Ticketek website using credit cards. The Crown alleged that the credit card details for these purchases had been acquired dishonestly and that the tickets were probably purchased by a Mr Amera and other persons located overseas.

12 Initially, RWC tickets were purchased in the names of the appellants but, as purchases increased, other names provided by the appellants were used. Both appellants were involved in uplifting RWC tickets from ticket outlets in New Zealand and arranging for other people, whose names had also been used in connection with the purchases, to collect the RWC tickets. The Crown alleged the appellants were preparing to sell the tickets as the commencement date of the tournament approached.

The grounds of appeal

13 Mr Lawn advanced numerous grounds in support of Mr Asgedom's conviction appeal. Mr Anderson for Mr Demissie adopted these submissions but did not advance any separate submissions on his conviction appeal. Mr Lawn's submissions were excessive in length, running to some 71 pages. After discussion with the Court, the following principal issues were identified:

• (a) Whether evidence obtained under the search warrants was admissible.

• (b) Whether an Excel spreadsheet produced by the Crown was admissible.

• (c) Whether Judge Harvey's verdict was unreasonable. 3

14 Mr Lawn also raised issues relating to the form of the indictment; the refusal of an application for a stay of proceedings; the ordering of a judge-alone trial; and the refusal of applications under s 347 of the Crimes Act for a discharge. We will deal with the principal issues and then more briefly with these remaining issues.

The search warrants

15 In a ruling given on 16 June 2014 Judge Kiernan upheld the validity of the search warrant. 4 There was no appeal from that decision or, indeed, from any of the other pre-trial decisions. We accept Ms Grau's submission that, if there were any defect in the warrants, then the issue post-conviction is whether this led to any miscarriage of justice through the admission of evidence obtained in consequence of the execution of the warrants.

16 Mr Lawn challenged the issue of the warrants on a wide range of grounds. The main points were:

• (a) The application for the warrants was stated in terms that were too general.

• (b) The material contained in the application amounted to mere suspicion and was not sufficient to meet the threshold for reasonable grounds to believe that evidence of the commission of an offence was at the premises to be searched. 5

• (c) The application did not give adequate particulars of the offence for which the warrants were sought.

• (d) The application did not specify the individual tickets sought by reference to date, seat number or sale number.

• (e) The search warrants did not authorise the search of the cellphones found at the appellants' addresses.

• (f) The evidence located ought not to have been admitted in terms of the balancing test in s 30 of the Evidence Act 2006.

The content of the application for the warrants

17 The application for the search warrants was sworn by Detective Gillian Holland on 8 September 2011, the day before the RWC was to commence. She was a detective assigned to the...