Burchell v The Queen - [2010] NZCA 252

IN THE COURT OF APPEAL OF NEW ZEALAND
CA6/2008
CA808/2008
[2010] NZCA 252
BETWEENLLEWELLYN WILLIAM BURCHELL

Appellant

ANDTHE QUEEN

Respondent

Hearing:11 March 2010

Court:Ellen France, Miller and Allan JJ
Counsel:Appellant in person

J M Jelas for Respondent

Judgment:16 June 2010 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the conviction appeal in CA6/2008 is granted but the appeals against conviction and sentence are dismissed.
BThe appeal against conviction in CA808/2008 is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No.
Introduction  [1]
Background  [4]
CA6/2008 – the charges  [4]
CA808/2008 – the charges  [8]

The activities relating to Hotel Holidays and Thee Agent – CA6/2008  [11]
The evidence at trial  [12]
The basis of the conviction appeal  [22]
Discussion  [23]

Sentence appeal – CA6/2008  [31]
The Judge’s approach  [31]
The basis of the sentence appeal  [33]
Discussion  [35]

Obtaining credit from Senate Finance and activities relating to Hotels
International – CA808/2008  [42]
The grounds of appeal  [42]
Discussion  [45]

Procedural issues [61]
Name suppression [62]
Request to appoint an amicus[66]

Disposition  [78]
Introduction
[1]        These two appeals relate to convictions under the Insolvency Act 1967. They involve charges that Mr Burchell carried on activities he was prohibited from undertaking whilst an undischarged bankrupt.
[2]        The issues on the appeal numbered CA6/2008 focus on the sufficiency of the evidence about Mr Burchell’s activities and his understanding of his duties as a bankrupt. Mr Burchell also says the sentence of nine months imprisonment imposed in relation to these charges is manifestly excessive. In terms of CA808/2008, the key issues relate to what Mr Burchell knew about his status at the relevant time and the nature of Mr Burchell’s role in relation to a business in which he was involved.
[3]        We deal with the two appeals together because there is some overlap between the cases and there are procedural issues common to both.
Background
CA6/2008 – the charges
[4]        The charges in CA6/2008 arose out of Mr Burchell’s activities in relation to a company called Hotel Holidays Ltd (Hotel Holidays) and another property-related enterprise known as Thee Agent.
[5]        Mr Burchell was convicted after trial in the High Court on two charges under s 128A(1)(b) of the Insolvency Act. The charges relate to breaches of s 62 of the Act, that is, carrying on a business while an undischarged bankrupt without the consent of the Official Assignee.
[6]        The incidents giving rise to these charges are set out in the sentencing remarks of Courtney J, who was the trial Judge.[1] Courtney J explained:
[2]         The charges relate to two businesses that you continued to run after your bankruptcy in July 2004. The first was a home stay business [Hotel Holidays] under which you solicited people to act as local hosts for overseas visitors for home stays. People paid you to join or register as hosts. However, they never received any guests or made any money. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burchell v The Queen

Details

AGLC: Burchell v The Queen [2010] NZCA 252
Case: [2010] NZCA 252
Decision Date: 16 June 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered two appeals against convictions under the Insolvency Act 1967 brought by Llewellyn William Burchell. Burchell was convicted of carrying on activities prohibited for undischarged bankrupts. The first appeal (CA6/2008) related to Burchell's activities with Hotel Holidays Ltd and Thee Agent, and the second appeal (CA808/2008) related to his involvement with Hotels International and obtaining credit from Senate Finance Limited. Burchell argued that his knowledge of his bankruptcy status and the sufficiency of evidence were insufficient to support his convictions, and that his sentence was excessive. The Court dismissed both appeals against conviction, finding the evidence sufficient and the sentence appropriate. The Court granted an extension of time to file the conviction appeal in CA6/2008 but dismissed the appeals against conviction and sentence in both cases.

Orders