Pair guilty on cheque fraud

Press, 8 March 1989, Page 10

Pair guilty on cheque fraud

A man and woman in the District Court yesterday were found guilty on all charges against them, relating to the deposit of a $20,000 cheque, subsequently dishonoured, into the man’s account and his withdrawal of $14,500 after it had been deposited. The Crown contended that the defendants, Brent James Burbery, and Tracey Teresa Knox, both aged 25, had acted with intent to defraud the Westpac Banking Corporation. The defence denied any dishonest intent in the transactions.

At the opening of the trial on Monday the two faced a joint charge, and Knox a separate identical charge, that on or about December 23, 1987, with intent to defraud, they used a Bank of New Zealand cheque for $20,000 to obtain a financial advantage for Burbery. Burbery also faced two other separate charges. They were that on December 23, 1987, with intent to defraud, he used a Westpac Banking Corporation Advantage Saver withdrawal voucher for $4500 to obtain for himself a financial advantage; and a similar charge for December 24, 1987, relating to a withdrawal voucher for $lO,OOO.

Burbery was charged with the joint offence as being a party to the deposit, by Knox, of the $20,000 cheque into Burbery’s account. After a hearing in chambers the Judge announced to jurors before the case resumed yesterday that the separate charge against Knox had been withdrawn from the trial.

They thus had to give verdicts only on the joint charge against the two, and on the two separate charges which Burbery faced.

The jury reached its verdicts of guilty to the three charges after a retirment of three hours.

Judge Erber remanded the defendants on bail to March 17 for probation reports and sentence.

The two also await sentence on a series of fraud charges on which a jury found them guilty, after a trial in the District Court, last August.

At this week’s trial the Crown, represented by Mr R. E. Neave, had contended that Burbery falsely told bank officers he would be receiving a $20,000 solicitors trust fund cheque, when in fact the cheque which was deposited was on the account of Birchfield Holdings, Ltd, in which Knox

had an interest and was its secretary. The false claim that it was to be a solicitor’s trust fund cheque was alleged to have led to bank staff paying out on the cheque without waiting the usual time for clearance. Mr Neave described as a charade the circumstances of the defendants’ depositing the cheque, and Burbery’s claiming to bank officers it was a solicitor’s trust fund cheque from a property settlement.

He said the whole point of this was to persuade the Westpac bank the cheque was one which Burbery could draw on. Burbery, who was not represented by counsel, did not call evidence in his defence.

In his address to jurors he sought not guilty verdicts on the three charges against him.

He said there was no evidence that he had any knowledge that the cheque paid by Knox into his bank account was not a solicitor’s trust fund cheque.

He contended also that the evidence of four bank staff relating to his withdrawals of $4500 and $lO,OOO did not show any intention by him to act dishonestly.

He said that it was not unusual for him to withdraw large amounts in cash from his account.

Burbery said the case simply involved a $20,000 cheque as deposit for a property sale and purchase agreement, and two withdrawals amounting to $14,500 against that deposit. Burbery said in reference to the joint charge that there had been no proof he knew Knox had not deposited into his account a solicitor’s trust account cheque, but instead a cheque from Birchfield Holdings account.

Mr C. M. Ruane, for Knox, called one defence witness, Hugh Roger Gibbons, a partner in the firm of chartered accountants, Peat Marwick. He produced copies of agreements for sale and purchase of a property, showing Burbery as vendor and Birchfield Holdings, Ltd, as purchaser. In his final address, Mr Ruane said evidence was of a contract agreement for sale by Burbery of a property to Birchfield Holdings, of which Knox was a shareholder, and secretary. The agreement required a deposit of $20,000 to be paid to Burbery by December 21,

Knox paid the deposit into his account two days late, and gave Burbery the receipt showing she had paid it in. Burbery withdrew from these funds later that day, and as it turned out there were no funds to meet the Birchfield Holdings cheque. Mr Ruane cited as an example of Knox’s honest intent the fact that she had later gone to a bank manager, concerned that cheque had been dishonoured, and made a payment of $lOOO at that time.

Counsel said a cheque was later paid into Knox’s account, comprising GST refunds, which more than covered the $20,000 deposit.

Mr Ruane said Knox would have known that if the cheque had “bounced” it would be of no benefit to her or Burbery, as the full price of the property settlement would still have to be paid eventually. In any event, Knox had the expectation that the cheque, from a private company, could not be drawn on until the funds were cleared.

There was no evidence that Knox acted in concert with Burbery, Mr Ruane said.