Michael Colosimo's appeal to the Supreme Court against his jail sentence of two years and six months on fraud charges has been denied.

He sought leave to appeal to the Supreme Court following the Court of Appeal's dismissal of an appeal against convictions for forgery or dishonestly using a document.

Michael Colosimo's appeal to the Supreme Court has been denied.

At his Tauranga trial, the jury found that he had forged a financial statement concerning a restaurant business before presenting it to persons who were negotiating a purchase of the business.

The forged document purported to be prepared by his accountant and substantially overstated the turnover of the business, the Kestrel at the Landing restaurant.

The defence was opened on the basis that the document was not a forgery, and went on to explain that if it was, then it had been committed by a Mr Harvey without the knowledge of the defendant.

The 'no forgery” defence ran into immediate difficulty when the accountant who supposedly prepared the document, Kevin McFadden, disowned it. His evidence was not challenged in cross-examination.

New accountants had been engaged by Colosimo in January 2006. An employee of the new firm, Mr Manning, in evidence for the Crown, disclosed that he had an electronic file which included a draft trading statement for the ten-month period.

That statement was qualified as to its accuracy and showed a trading profit $100,000 below that in the statement given to the purchasers. It was apparent that the draft had been used to create the forgery by adding $100,000 to the sales revenue and net surplus figures, and by the deletion of the qualification.

The forgery combined the altered draft and a front page which bore the letterhead of Mr McFadden's firm and a form of waiver statement used by his firm. Neither the police nor the Crown were aware of Mr Manning's electronic file, but it is evident that the defence already had a copy of the draft statement in its unaltered form. Computer experts subsequently gave evidence that the alterations were done on Mr Colosimo's office computer on 3 February, 2006.

During the trial the defence claimed to be taken by surprise by Mr Manning's disclosure. Judge Peter Rollo therefore adjourned the trial overnight.

Next morning, he ruled the documents disclosed by Mr Manning were admissible. He then adjourned the hearing for a further day to enable the parties to consider them and make further inquiries. When the trial resumed, counsel for the defence sought a mistrial on the ground of prejudice caused by the late disclosure of the documents. The Judge dismissed that application.

He considered that, although the draft trading statement married up with Mr McFadden's evidence that the November financial statement tendered to the purchasers was untrue, even without it the forgery had been established.

No application for any further adjournment was made and the trial continued.

The argument that it was unfair to proceed with the trial in these circumstances was rejected by the Court of Appeal.

It pointed out that the draft trading statement produced by Mr Manning was by no means a complete surprise to the defence.

The defence, while maintaining in opening that there was no forgery, signalled that it would also be saying that there must have been a forgery committed by Mr Harvey of which Mr Colosimo knew nothing.

No further adjournment had been sought after the Judge's ruling on admissibility, and in the Court of Appeal it was found that Mr Colosimo hadn't presented any further evidence relating to avenues his defence could have taken had it been given more time.

The appeal to the Supreme Court was based on an alleged failure of the prosecution to disclose Mr Manning's electronic file, as required by the Criminal Disclosure Act 2008.

The Supreme Court upheld the Crown submission: The Act does not place the prosecution under a duty to disclose material not in its possession and of which it is unaware.

Where information comes into the possession or control of the prosecutor or is prepared in recorded form after disclosure has been made, and before the hearing or trial is completed, the prosecutor must disclose the information to the defendant as soon as it is reasonably practicable.

That is what occurred in this case. The trial was adjourned and disclosure made when Mr Manning mentioned the electronic file.

Justices Blanchard CJ and William Young JJ are satisfied the proposed appeal cannot succeed as there is no appearance of any substantial miscarriage of justice.

Michael Santo Colosimo, 48, was found guilty of one count each of forging a financial statement and dishonestly using that document to obtain a pecuniary advantage after an 11-day jury trial in Tauranga District Court in September 2011.

Colosimo provided forged financial statements to Tauranga couple Michael and Sue Dyke during negotiations to buy the floating restaurant from Colosimo's company Cervino Holdings during December 2006 and January 2007.

The couple bought the floating restaurant for $400,000 plus $33,000 for stock in June 2007, but put their business into voluntary liquidation 12 months later because it was losing $25,000 to $30,000 a month. They discovered Colosimo had provided them with a forged trading statement which exaggerated the gross turnover by $100,000.

At the trial, Michael Dyke's evidence was if they had known the true financial position of the restaurant he and his wife would never have bought the business, nor spent another $150,000 trying to keep it afloat.