Clearkin v Dovell - [2023] NZHC 2438

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-0063

[2023] NZHC 2438

BETWEEN
BRIAN NEAL CLEARKIN

Appellant

AND

PERRY JAMES DOVELL

Respondent

Hearing: 7 June 2023

Appearances:

Appellant in person

J E Tarrant for Respondent

Judgment:

31 August 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 31 August 2023 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Counsel: J E Tarrant, Hamilton

Copy to: Mr B N Clearkin

CLEARKIN v DOVELL [2023] NZHC 2438 [31 August 2023]

Introduction

[1] In circumstances described below, the respondent, Mr Dovell, was charged with theft by a person in a special relationship and an alternative charge of criminal breach of trust.1 The charges were laid and prosecuted by the appellant, Mr Clearkin. His doing so followed a decision by the Police that there was insufficient evidence to warrant prosecution.

[2] Mr Dovell pleaded not guilty to the charges and the matter proceeded to a defended hearing before Judge T R Ingram in the District Court at Thames on 23 August 2022. The Judge heard evidence from a Ms Frances Southorn for the prosecution and from Mr Dovell. Mr Dovell was represented at trial by Ms Beveridge (who was not assigned counsel on appeal).

[3] After the evidence had concluded, the Judge delivered an oral decision.2 In his decision, the Judge recorded that, having heard the evidence, he had advised Mr Dovell that he thought the elements of the “special relationship” charge had been made out; that Mr Dovell had then entered a plea of guilty to that charge; and that the Judge had then dismissed the alternative charge. The Judge then considered whether he would discharge Mr Dovell without conviction, pursuant to s 106 of the Sentencing Act 2002, ultimately deciding to do so.

[4]Mr Clearkin seeks to appeal to this Court against the Judge’s decision.

Procedural matters

[5] Unfortunately, the procedural course of this appeal has not been in accordance with the requirements of the Criminal Procedure Act 2011 (“CPA”).

[6] Section 296 CPA governs the circumstances in which a prosecutor may appeal against an acquittal, which includes a discharge without conviction. It provides:

296 Right of appeal

(1)This section applies if a person has been charged with an offence.

1 Crimes Act 1961, ss 220 and 229.
2 Clearkin v Dovell [2022] NZDC 16118.

(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)The question of law in a first appeal under this subpart must arise—

(a)in proceedings that relate to or follow the determination of the charge; or

(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

(4)The question of law must not be one that—

(a)arises from…

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 Clearkin v Dovell

Details

AGLC: Clearkin v Dovell [2023] NZHC 2438
Case: [2023] NZHC 2438
Decision Date: 31 August 2023

CaseChat Overview and Summary

In Clearkin v Dovell, Brian Neal Clearkin, the appellant, sought to appeal against the decision of Judge T R Ingram of the District Court at Thames, who discharged Perry James Dovell, the respondent, without conviction after Mr Dovell pleaded guilty to a charge of theft by a person in a special relationship under section 220 of the Crimes Act 1961. The appeal was brought pursuant to section 296 of the Criminal Procedure Act 2011, which governs the circumstances in which a prosecutor may appeal against an acquittal, including a discharge without conviction. The appeal was initiated due to procedural errors in the filing of the appeal and the failure to identify a question of law. Justice Peters, the judge presiding over the appeal, found that the first of the appellant’s proposed questions of law constituted a valid question of law arising in the required manner and granted the necessary extension of time and leave to appeal on that first question. The appellant's primary argument was that the District Court Judge had failed to recognise and take into account that Mr Dovell had lied about the account to which he had repaid the funds. The court, however, found that the focus of the Judge's decision was correctly placed on the fact of the return or restoration of the funds, and the location of the funds at the time of repayment was not particularly relevant. The court was not persuaded that the Judge overlooked any relevant consideration and dismissed the appeal.

[36] I dismiss this appeal.

Orders