Six
years imprisonment for real estate fraudster Malcolm Duncan Mayer has been upheld
by the Court of Appeal while dismissing calls for a retrial based on
allegations the prosecutor deliberately misled the trial judge over the
whereabouts of a co-accused who had fled the country.
Mayer was convicted in 2013 on 16 counts of
dishonesty and ten counts of forgery following frauds perpetrated on financier
Trustees Executors Ltd. Mayer, either on
his own or jointly with co-accused Simon Turnbull, borrowed $47.8 million
from Trustees Executors. It suffered net
losses of $19.1 million.
A Serious Fraud Office investigation identified
false loan applications made by Mayer using what was called “price
hydraulicing” to circumvent Trustees Executors lending limits. Company policy was to lend a maximum of 80
per cent of a property’s registered value.
Evidence was given that Mayer would agree to purchase a property from a
genuine vendor and then create a bogus second contract to immediately onsell
the property to a fictitious buyer at an inflated price. The second bogus contract was used to get
loan finance from Trustees Executors. By
getting 80 per cent of inflated bogus prices Mayer was able to secure 100 per
cent financing for a string of properties.
Other similar deals were carried through with Turnbull. The two also created bogus lease agreements
under which no rentals were ever paid, creating a false picture of rental
income supposedly available to support mortgage borrowing.
The court was told Turnbull, an immigrant from
South Africa, left New Zealand some three months before a Serious Fraud Office
investigation started. In the period
prior to Mayer’s trial, Serious Fraud received three tip-offs as to Turnbull’s
possible overseas locations. He was
placed variously in Singapore, London and Texas. The three separate informants did not
identify themselves.
Mayer argued he did not get a fair trial
because the trial judge was misled. The
judge was told the prosecution did not know Turnbull’s whereabouts when it did
have information about where he might be.
Mayer said he would have elected trial by jury, rather than by judge
alone, if information about the tip-offs had been disclosed.
The Court of Appeal ruled this failure to
disclose was not grounds for a retrial. Having
unverified information that Turnbull was “somewhere in Texas” just prior to
Mayer’s trial would not give sufficient time to find and extradite Turnbull
before the trial. Even if there were a
joint trial, said the Court, Turnbull could exercise his right to stay silent
and if he were to give evidence the prospect of him exonerating Mayer and
accepting sole responsibility for much of the fraud was unlikely. There was sufficient evidence for the trial
judge to convict Mayer alone for his part in the fraud. With a lengthy trial involving over 40
witnesses and thousands of pages of documents any joint trial would have had to
proceed before a judge alone, the Court of Appeal said.
Mayer v.
R. – Court of Appeal (29.05.15)
15.053