Clearkin v Dovell
[2023] NZHC 2438
•31 August 2023
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 a jury verdict; or
(b)arose before the trial and has already been decided under subpart 2.
[7] The effect of s 296(2) is that leave to appeal must be obtained, and leave may only be granted on a question of law against a ruling by the trial court. In addition, the question of law must arise either in proceedings that relate to or follow the determination of the charge, or in the determination of the charge (see s 296(3)).3 Subject to any extension of time, the application for leave is to be made within 20 working days of the decision appealed against (s 298 CPA).
[8] Mr Clearkin did not file an application for leave to appeal under s 298 CPA but a notice of appeal against sentence under s 248 CPA. This was the incorrect provision and, moreover, required Mr Clearkin to obtain the consent of the Solicitor-General. Having been approached, Crown Law advised Mr Clearkin that he needed to proceed under s 296 CPA. Mr Clearkin did not, however, file an application for leave to appeal, let alone one stating the required question of law. Nor did Mr Clearkin seek, and nor has he sought, an extension of time in which to seek leave.
[9] On 30 May 2023, I issued a minute notifying the parties that any appeal would need to be confined to questions of law. At the hearing of the appeal, Mr Clearkin presented a memorandum identifying his proposed questions of law as follows:
(a)Did Judge Ingram consider all relevant evidence?
3 R v Smyth [2017] NZCA 530.
(b)Did Mr Dovell commit perjury at the hearing?
(c)Did Judge Ingram wrongly conclude that Mr Dovell was unaware of his responsibilities regarding funds that were not his own?
Question of law
[10]The following constitute questions of law in this context:4
(a)A misdirection of law.
(b)Failing to take into account a relevant consideration or taking into account an irrelevant consideration.
(c)Making a factual finding that is unsupported by any evidence or failing to draw an inference of fact which is the only one reasonably possible on the evidence — often referred to as “plainly wrong”.
[11] I will proceed on the basis that the first of Mr Clearkin’s questions constitutes a question of law arising in the required manner. I grant the necessary extension of time and leave to appeal on that first question. The other two matters are outside s 296 CPA and thus I do not have jurisdiction to extend time or to grant leave.
Background
[12] In 2016, Ms Southorn and Mr Dovell, good friends at the time and with a common interest in animal welfare, decided that they would establish a charitable trust for purposes of fostering such welfare. They also recruited two other trustees to the cause.
[13] As I understand the evidence, Mr Dovell approached a trading bank to open an account for the trust. The bank declined to do so until it had sight of an executed trust deed.
4 R v Malu [2017] NZCA 546 at [10].
[14] Given that, and pending satisfaction of the bank’s requirements, Mr Dovell opened an account with an “02” suffix (“02 account”) under his business account.
[15] This meant Mr Dovell had two sub-accounts. The first was for his business and the second was the 02 account, for the trust.
[16] Trust funds, or at least funds intended for the trust, were paid into the 02 account. Mr Dovell was the sole party authorised to transact on the 02 account.
[17] In the course of 2017, Mr Dovell, in straitened circumstances, transferred some funds from the 02 account to his business account to cover various outgoings. The Judge accepted that Mr Dovell believed he had consent from Ms Southorn to his doing so, something Ms Southorn categorically denied at trial.
[18] Ms Southorn and Mr Dovell then had a serious disagreement relating to an animal welfare issue, and fell out with one another.
[19] In about late-2017, the proposed trust was formally settled, registered as a charitable trust, and it also opened its own bank account with Westpac. I shall refer to this as the “frozen account”.5
[20] Mr Dovell subsequently repaid the funds he had transferred, with interest. As appears below, there is a dispute as to the account to which Mr Dovell repaid the funds: the 02 account or the frozen account.
Section 220 Crimes Act 1961
Section 220 of the Crimes Act 1961 provides:
Theft by person in special relationship
(1)This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person—
5 The bank subsequently froze the funds in the account, either when the parties fell out or when the charity was “deregistered” as a charitable trust.
(a)to account to any other person for the property, or for any proceeds arising from the property; or
(b)to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
(2)Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3)This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
(4)For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
Judge’s decision
[22] In the first part of his judgment, the Judge outlined the evidence that had been given. He referred particularly to the difference between Mr Dovell and Ms Southorn, that is Mr Dovell believing Ms Southorn had approved or allowed him to transfer the money from the 02 account (always on the basis he was to pay the money back) and Ms Southorn’s point blank denial that she had ever given any such approval.
[23] The Judge then said that he was satisfied the elements of the charge under s 220 had been established but that the situation had arisen from Mr Dovell’s ignorance of his obligations both as a trustee, and as treasurer holding money for the “yet to be formed” trust.6
[24]The Judge then said:
[6] In the circumstances, I am completely satisfied that [Mr Dovell] believed that he was entitled to take the money in the circumstances that I have outlined as long as he repaid it and he has repaid it together with a sum of interest on that money.
6 Mr Clearkin submits that Mr Dovell could not have been in ignorance of his obligations given his prior experience in a local branch of the SPCA. However, the Judge’s conclusion was that Mr Dovell was in ignorance of his obligations is a finding of fact which is not open to be appealed.
[25] The Judge then repeated that he was satisfied that all of the elements of the s 220 offence were established, and that, at the conclusion of the evidence: 7
[9] ... Mr Dovell was inclined to accept that the elements of the charge had been made out. He entered a guilty plea to the charge of theft by a person in a special relationship ...
[26] I note that the Judge’s reference to Mr Dovell being “inclined” to accept the elements were made out suggests to me that there may have been a discussion between the Judge and the parties (including Ms Beveridge) after the evidence and before the Judge delivered his decision. Also, Mr Dovell must have entered his plea in the intervening period.
[27] The Judge’s decision then turns to the question of penalty, the Judge ultimately expressing himself satisfied it was appropriate to discharge Mr Dovell without conviction. Given the issue on appeal, it is unnecessary for me to address the Judge’s precise reasons.
Submissions on appeal
[28] Mr Clearkin submits that Mr Dovell’s evidence was that he had paid all funds to the frozen (trust) account but he had not done so. Mr Clearkin referred me to those parts of the transcript where Mr Dovell is said to say, and repeat, that all funds were deposited to the frozen account.
[29] Mr Clearkin submits that his cross-examination of Mr Dovell revealed that Mr Dovell had lied to the Court about this. Mr Clearkin submits that this was a relevant consideration, but the Judge failed to recognise it and to take it into account in reaching his decision. Mr Clearkin submits that I should allow the appeal, quash the discharge, and enter a conviction against Mr Dovell under s 220.
[30] Counsel for Mr Dovell on appeal, Ms Tarrant, submits that I should dismiss this appeal because Mr Clearkin has not sufficiently identified where the Judge erred in his decision.
7 Clearkin v Dovell, above n 2.
Discussion
[31] It is unclear to me from the transcript whether Mr Dovell’s evidence was that he restored the monies to the 02 account or to the frozen account. With respect to Mr Clearkin, who has been who has been intimately involved in the matter, I do not consider the evidence on this point is as clear as he does or that, if there was an error by Mr Dovell, it was not a simple mistake. Both witnesses acknowledged making mistakes in some of their oral evidence and going back to correct the position. This is not an unusual occurrence in a trial and certainly not sufficient for any allegation of the serious matter of perjury.
[32] In my view, the account to which Mr Dovell paid the funds does not particularly matter. What matters is that Mr Dovell had repaid or restored the funds that he had earlier transferred, together with interest, plainly with the intention that they would be available to be applied solely for their intended purpose.
[33] The Judge’s focus, quite correctly in my view, was on the fact of the return or restoration of the funds, not where they were presently held. It is obvious that the outcome would have been different if the Judge had any hint that Mr Dovell intended to keep accessing the funds for personal use.
[34] It follows that I am not persuaded the Judge overlooked any consideration that was relevant to the decision he was required to make, and I propose to dismiss the appeal.
[35] There is one other point to address. I have already referred to Mr Clearkin’s wish that, had he succeeded on appeal, I set aside the discharge without conviction and enter a conviction against Mr Dovell. I would not have entered a conviction against Mr Dovell. Quite aside from anything else, as I said earlier, there appears to have been a discussion between the Judge and those involved in the trial after the evidence was concluded but before the Judge gave his decision. That discussion might have a bearing on the appropriate course. At most, I would have quashed the discharge without conviction and referred the matter back to the District Court.
Result
[36]I dismiss this appeal.
Peters J
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