<I>

  <&>Wellington Corpus of Spoken New Zealand English Version One</&>
  <&>Copyright 1998 School of Linguistics & Applied Language Studies</&>
  <&>Victoria University of Wellington</&>

  <&>side one</&>
  <&>0:04</&>
  

  <WSC#MUJ009:0005:JP>
      madam foreman and er members of the jury you have er er since
      this morning heard two quite persuasive closing addresses and
      subject to er anything which I may have to say to you the focus
      of this trial now switches appropriately and inevitably upon YOU
      <,>

  <WSC#MUJ009:0010:JP>
      er you may not know that er in this country a judge is required
      to GIVE a number of general directions to a jury er which affect
      all criminal trials in this country <,>

  <WSC#MUJ009:0015:JP>
      and er the er first general direction concerns our respective
      functions

  <WSC#MUJ009:0020:JP>
      it's my duty er to regulate the conduct of the trial er to
      <&>1:00</&> rule on questions of evidence and procedure er to
      ensure that each side gets a fair opportunity to present their
      case to you and finally to direct you on the law <,>

  <WSC#MUJ009:0025:JP>
      on the other hand the SOLE responsibility for deciding all
      questions of fact is yours

  <WSC#MUJ009:0030:JP>
      it's for you to decide what evidence you will accept or reject
      or what weight you will give to any part of the evidence <,>

  <WSC#MUJ009:0035:JP>
      and if when i am speaking to you i appear <,> to offer some view
      of the evidence or of any witness with which you don't agree
      then you ignore what i say because er findings and fact and
      decisions on the credibility and reliability of any witness are
      for you and not for me <,>

  <WSC#MUJ009:0040:JP>
      and that's um pretty important in THIS <&>2:00</&> case because
      to a large extent your decision or verdict will depend on what
      view er you take of mister hart's evidence compared perhaps with
      mister oakley's evidence <,>

  <WSC#MUJ009:0045:JP>
      although as i shall shortly explain the REAL test will be
      whether you are satisfied or sure that the crown has PROVED that
      what mister <slowly>hart said was true</slowly> <,>

  <WSC#MUJ009:0050:JP>
      now the second point is that you must come please er to your er
      verdict solely on the evidence which you have heard yesterday
      and today <,>

  <WSC#MUJ009:0055:JP>
      in the unLIKELY event that you know anybody involved or know
      anything about this case you put that out of your mind

  <WSC#MUJ009:0060:JP>
      i suggest that you consider all the evidence which would include
      all the exhibits which you will take <&>3:00</&> with you when
      you retire <,>

  <WSC#MUJ009:0065:JP>
      and <.>if</.> i'm sorry and WHEN reflecting on the evidence
      which was given you may wish to take into account not just what
      was said but how it was said because <,> er sometimes how you
      assess the demeanour and the character and the personality of a
      witness may be a a valuable guide in deciding whether the
      witness is to be believed

  <WSC#MUJ009:0070:JP>
      madam foreman you don't by law have with you a copy of this
      transcript when you retire and that's because it CAN be
      misleading

  <WSC#MUJ009:0075:JP>
      er but if at any stage any member of the jury would like any
      evidence read back then you simply make the appropriate request
      to the jury escort and that will be done <,>

  <WSC#MUJ009:0080:JP>
      now the third point that i wish to <,> er

  <WSC#MUJ009:0085:JP>
      and on that aspect you you are asked to rely on your memory of
      what was said and your <&>4:00</&> imPRESSION of the various
      witnesses

  <WSC#MUJ009:0090:JP>
      now the THIRD point er is that you must er reach your decision
      uninfluenced by feelings of prejudice or sympathy

  <WSC#MUJ009:0095:JP>
      and quite often those sort of feelings can be aroused in a
      criminal trial <,>

  <WSC#MUJ009:0100:JP>
      so i'd like you to remember that you're the judges when you are
      making your verdict and no judge should ever allow a feeling of
      prejudice against or sympathy for a an accused person or a
      complainant or a witness to affect his or her decision <,>

  <WSC#MUJ009:0105:JP>
      i suppose you could say that in this case you know er that a man
      has lost approximately forty five thousand dollars and you might
      feel sorry for him <,>

  <WSC#MUJ009:0110:JP>
      but that sort of consideration should affect your deliberation

  <WSC#MUJ009:0115:JP>
      and you are asked please to assess the evidence in a cool and
      calm and dispassionate and above all <&>5:00</&> FAIR way er
      fair to the accused and fair to the community represented by the
      crown <,>

  <WSC#MUJ009:0120:JP>
      the fourth point which IS the most important is that the onus of
      proof of the essential ingredients of the charge is on the crown

  <WSC#MUJ009:0125:JP>
      and that onus rests on the crown from the beginning of this
      trial to its conclusion

  <WSC#MUJ009:0130:JP>
      there is no onus on accused person at any stage to prove his
      innocence

  <WSC#MUJ009:0135:JP>
      an accused person in a criminal trial does not have to give
      evidence <,>

  <WSC#MUJ009:0140:JP>
      in this case er the accused HAS chosen to do so but he still
      carries no onus

  <WSC#MUJ009:0145:JP>
      and the law is that the crown must prove each essential
      ingredient of the charge beyond reasonable doubt before you may
      bring in a verdict of guilty on that charge <,> <&>6:00</&>

  <WSC#MUJ009:0150:JP>
      reasonable doubt does not mean some vague or fanciful doubt <,>

  <WSC#MUJ009:0155:JP>
      to be satisfied beyond reasonable doubt means that you feel sure
      that the accused is guilty of the charge <,>

  <WSC#MUJ009:0160:JP>
      so that if you do feel sure it's your duty to find the accused
      guilty

  <WSC#MUJ009:0165:JP>
      but if you are left with a reasonable doubt one that leaves you
      feeling unsure then it's equally your duty to acquit <,>

  <WSC#MUJ009:0170:JP>
      the next point that i would like to talk to you about is the
      effect of the accused giving evidence

  <WSC#MUJ009:0175:JP>
      i <,> already said and i emphasise that the fact that he has
      done so doesn't alter the onus of proof

  <WSC#MUJ009:0180:JP>
      but generally speaking if an accused person does give evidence
      three scenarios present themselves to a jury

  <WSC#MUJ009:0185:JP>
      ONE er <&>7:00</&> you er may accept his evidence on the
      essential ingredients of the case

  <WSC#MUJ009:0190:JP>
      he may therefore have proved his innocence and you will find him
      not guilty <,>

  <WSC#MUJ009:0195:JP>
      TWO you may reject his evidence on the essential ingredients <,>
      of the charge or THREE you may be unsure whether to accept or
      reject his evidence <,>

  <WSC#MUJ009:0200:JP>
      well in either of those last TWO scenarios you still look at ALL
      the evidence to decide whether the crown has proved the charge
      beyond reasonable doubt <,>

  <WSC#MUJ009:0205:JP>
      and the final point before i deal with the indictment is that as
      a jury you are entitled to draw inferences from facts which you
      find have been properly proved before you in evidence <,>

  <WSC#MUJ009:0210:JP>
      an inference is not a guess nor is it speculation

  <WSC#MUJ009:0215:JP>
      an inference is a <&>8:00</&> logical conclusion from a proved
      fact

  <WSC#MUJ009:0220:JP>
      and once again that's important in this case because the crown
      asked you to draw <,> er the inference that at the relevant time
      mister oakley had an intent to defraud

  <WSC#MUJ009:0225:JP>
      now the charge is <.>mm</.> made up in a document which we call
      an indictment which you will have with you when you retire

  <WSC#MUJ009:0230:JP>
      and i'd just like to briefly read it to you

  <WSC#MUJ009:0235:JP>
      it reads <reads>the crown solicitor at wellington charges that
      hank guthrie oakley on or about the tenth of july nineteen
      ninety two at wellington with intent to defraud <,> did use a
      document capable of being used to obtain a <.>cu</.> pecuniary
      advantage namely an invoice in the name of <&>name of company
      one</&> numbered one double <&>9:00</&> oh one two addressed to
      <&>name of company two</&> for the purchase of seventeen point
      three double eight tonnes of raw paper at a cost of forty five
      thousand dollars for the purpose of obtaining for himself or for
      <&>name of company one</&> a pecuniary advantage</reads>

  <WSC#MUJ009:0240:JP>
      now that charge is made up of a number of elements all of which
      the crown must prove

  <WSC#MUJ009:0245:JP>
      and i'd just like to discuss them with you

  <WSC#MUJ009:0250:JP>
      the first element is an intent to defraud <,>

  <WSC#MUJ009:0255:JP>
      now that's the element on which both counsel have focused as
      being the issue in this case so i'll just leave that for the
      moment

  <WSC#MUJ009:0260:JP>
      the second element is the using of a document <,>

  <WSC#MUJ009:0265:JP>
      now to use something is to make use of it to apply or to benefit
      from

  <WSC#MUJ009:0270:JP>
      i don't think there's a problem about that

  <WSC#MUJ009:0275:JP>
      it must be proved that there was a document and a document is
      <&>10:00</&> something on which information is written <,>

  <WSC#MUJ009:0280:JP>
      and an invoice could well be a document

  <WSC#MUJ009:0285:JP>
      fourthly it must be capable of being used for pecuniary
      advantage <,>

  <WSC#MUJ009:0290:JP>
      and what that really means is that is there anything in that
      invoice to prevent it from being used for pecuniary advantage

  <WSC#MUJ009:0295:JP>
      and clearly it was capable of being so used

  <WSC#MUJ009:0300:JP>
      and the <.>fis</.> fifth aspect is it must be for the purpose of
      obtaining a pecuniary advantage for the company or a monetary
      advantage

  <WSC#MUJ009:0305:JP>
      and that to some extent ties up with the intent <?>to</?>
      defraud because there is no question that in this case the
      company has benefited that is <&>name of company one</&>
      materially and in a <&>11:00</&> pecuniary er way as a result of
      the use of the document

  <WSC#MUJ009:0310:JP>
      so i go back to the first element which the crown must prove
      that when he handed over the invoice mister oakley did so with
      intent to defraud mister hart or his company <,>

  <WSC#MUJ009:0315:JP>
      INTENT is what is in a person's mind at the time of doing a
      particular act

  <WSC#MUJ009:0320:JP>
      it's often not capable of er direct proof and will depend for
      proof on the drawing of inferences in the way that i have
      previously described

  <WSC#MUJ009:0325:JP>
      it will often rest on <.>circule</.> circumstantial evidence
      including what a person says and does before during and after
      the event <,>

  <WSC#MUJ009:0330:JP>
      so you have to <&>12:00</&> look at what happened in this case

  <WSC#MUJ009:0335:JP>
      you look at the surrounding circumstances and ask yourselves
      whether the crown has proved that when mister oakley handed over
      the invoice he never intended to supply any paper at all <,>

  <WSC#MUJ009:0340:JP>
      in other words he conned mister hart <,>

  <WSC#MUJ009:0345:JP>
      he knew that there was no paper to be imported

  <WSC#MUJ009:0350:JP>
      he wanted mister hart to believe that there was and that is why
      he wrote out the invoice

  <WSC#MUJ009:0355:JP>
      so that mister hart would believe that the paper was on its way
      <,>

  <WSC#MUJ009:0360:JP>
      and that therefore mister hart could pay for it <,,>

  <WSC#MUJ009:0365:JP>
      now that i suggest to you is the crucial issue in this case

  <WSC#MUJ009:0370:JP>
      WHAT were mister oakley's motives or intention or WERE
      <&>13:00</&> they misguided <,>

  <WSC#MUJ009:0375:JP>
      or were they dishonest <,>

  <WSC#MUJ009:0380:JP>
      was he a clever conman or was he an <.>ine</.> inept businessman
      <,>

  <WSC#MUJ009:0385:JP>
      what is not the issue i suggest to you is whose responsibility
      it was to produce the the bank statements or whether they were
      uplifted by the police at the time when they uplifted the other
      bank statements and you will have seen that er counsel
      themselves got quite concerned about those issues er or er the
      tactics

  <WSC#MUJ009:0390:JP>
      but i suggest to you that that not much importance should be
      attached to that and you should draw no inferences from that
      argument one way or the other <,>

  <WSC#MUJ009:0395:JP>
      so now i just then deal with the two cases the crown case and
      the <&>14:00</&> defence case

  <WSC#MUJ009:0400:JP>
      but the crown case is that mister oakley was a fraudster

  <WSC#MUJ009:0405:JP>
      it's based on the evidence of mister hart and to some extent
      mister lewis <,>

  <WSC#MUJ009:0410:JP>
      the crown says that here were two men mister hart and mister
      oakley who entered into a business arrangement um where paper
      was going to be imported

  <WSC#MUJ009:0415:JP>
      it was going to be treated and then it was going to be exported

  <WSC#MUJ009:0420:JP>
      the crown's case is that the deal fell through

  <WSC#MUJ009:0425:JP>
      <,> er and that inevitably or ultimately it was reduced to a one
      off shipment of seventeen point three tonnes of paper

  <WSC#MUJ009:0430:JP>
      and the crown case is that when mister oakley presented the
      invoice in july he had no intention of <&>15:00</&> honouring it
      <,>

  <WSC#MUJ009:0435:JP>
      that he was out to con or defraud mister hart and his company of
      forty five thousand dollars <,>

  <WSC#MUJ009:0440:JP>
      the crown case is that that invoice which you will have is a
      fiction <,>

  <WSC#MUJ009:0445:JP>
      there was never going to be paper arriving at the end of july
      and the crown says well look at the invoice which they suggest
      is an elaborate way er for one company to lend money or to
      invest money with another <,>

  <WSC#MUJ009:0450:JP>
      the crown asks you to look at the visit to the site at porirua
      <,,>

  <WSC#MUJ009:0455:JP>
      and if you look at THAT

  <WSC#MUJ009:0460:JP>
      er and in the end that's a matter for YOU you may almost be able
      to judge the whole case on that particular visit

  <WSC#MUJ009:0465:JP>
      <O>voc</O> because if it was part of this <&>16:00</&> elaborate
      hoax in other words just to fool mister hart into believing that
      he owned the paper that he was looking at out in porirua

  <WSC#MUJ009:0470:JP>
      if you are sure about that then you could with some
      justification i suggest be sure that the whole scheme was
      dishonest

  <WSC#MUJ009:0475:JP>
      but if you're not sure what the visit was for

  <WSC#MUJ009:0480:JP>
      in other words you're not sure whether it was to check on the
      area of so many rolls of paper or to establish ownership of the
      paper then that would mean that the crown has failed to satisfy
      you er on that particular issue and you therefore may with some
      justification say well if the crown can't satisfy me about THAT
      visit then it may not necessarily have made me sure that the
      <&>17:00</&> invoice was dishonestly prepared and produced

  <WSC#MUJ009:0485:JP>
      one of the exhibits which you'll have with you is this exhibit d
      the second invoice which has been regarded as or described as a
      quotation

  <WSC#MUJ009:0490:JP>
      i just want to mention to you that that was not put to er mister
      hart when he gave his evidence and i refused permission for
      mister hart to be recalled

  <WSC#MUJ009:0495:JP>
      so i simply ask you to take that into account when you assess
      the value of that particular document <,>

  <WSC#MUJ009:0500:JP>
      now the defence case is based on the interview which mister
      oakley had with the detective senior sergeant

  <WSC#MUJ009:0505:JP>
      and of course on what mister oakley said when he gave evidence
      too yesterday and today

  <WSC#MUJ009:0510:JP>
      and mister oakley has said that this was an investment by
      <&>18:00</&> <&>name of company two</&> of forty five thousand
      dollars or it could be seen as a prepayment towards an eventual
      purchase of paper <,,><&>5</&>

  <WSC#MUJ009:0515:JP>
      it er came about because of mister hart's inability to provide a
      letter of credit <,>

  <WSC#MUJ009:0520:JP>
      er and the defence case is that the document or invoice was a
      convenient way er to record the investment or the particular
      deal between the companies <,>

  <WSC#MUJ009:0525:JP>
      the er defence case is that mister oakley couldn't afford to
      have rolls of paper sitting around doing nothing while mister
      hart was still getting orders and that the paper <&>19:00</&>
      itself could deteriorate if er it had to be kept for too long
      <,>

  <WSC#MUJ009:0530:JP>
      the defence case is that the three men went to porirua to look
      at the storage capacity required for so many tonnes of paper
      <&>19:15</&>
</I>
