Coleclough v The King

[2024] NZCA 80

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA124/2020
 [2024] NZCA 80

BETWEEN	LYNETTE MARY COLECLOUGH Appellant
AND	THE KING Respondent

Hearing:	22 August 2023
Court:	Wylie, Ellis and van Bohemen JJ
Counsel:	J E L Carruthers for Appellant M R L Davie for Respondent
Judgment:	27 March 2024 at 11 am

JUDGMENT OF THE COURT

AThe appeal is allowed.

BMs Coleclough’s convictions are quashed.

CNo retrial is ordered.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Table of contents

Para no

Factual narrative

Charges are laid and progress to trial

Ms Coleclough pays a refund to NLBC

Theft in a special relationship

Crown opening

The decision to split the charges

Crown closing

The Judge’s summing up

The appeals

Our approach

Adding the second charge

Mens rea

Result

1. On 5 December 2019, following a trial by Judge D McNaughton and a jury, Ms Coleclough was convicted on two counts of theft by a person in a special relationship.[1]  She was later sentenced to six months’ community detention and ordered to pay reparation in the sum of $7,401.25, and additional emotional harm reparation of $5,000.[2]  

   [1]Crimes Act 1961, ss 220 and 223(a) (maximum penalty of seven years’ imprisonment). 

   [2]R v Coleclough [2020] NZDC 3298 at [33]–[34].

2. Ms Coleclough now appeals both her conviction and sentence.[3]  In summary, she says:

   (a)the Judge’s decision to split the original single charge in two was wrong and unfair;

   (b)the Judge materially misdirected the jury on mens rea;

   (c)no properly instructed jury could reasonably have convicted her (on either charge);

   (d)the Judge invited the jury to speculate about the meaning of a particular piece of evidence in a way that was prejudicial to her; and

   (e)failing any of that, she should have been discharged without conviction.

Factual narrative

[3]Her sentence is automatically suspended pending the outcome of her appeal.  No reparation has yet been paid.

1. The following narrative is based on the evidence at trial.  Where there are relevant disputes, they are noted.

2. In August 2014, Mr Murray Wagener offered Ms Coleclough a job as an “Account Manager”.  The offer was written on Wagener Building Ltd (WBL) letterhead.  WBL is a construction company.  But the position to which the offer related was itself was described by reference to another of Mr Wagener’s business enterprises, Cobblestone.[4]  The letter said:

   [4]WBL was previously known as the Cobblestone Factory 1992 Ltd but, according to Mr Wagener’s evidence at trial, The Cobblestone Factory remains the trading arm of Cobblestone Limited Partnership.  Mr Wagener owns other companies, including MA Wagener Ltd and Ripiripi Farms Ltd.

   Essentially the role is sales with some administration being critical — particularly the recording of minutes of meetings with clients or subcontractors.  Keeping a daily work diary is critical as is the allocation of the time spent on various projects.

   We are conscious of the need to make these records as concise as possible but emphasise that any meeting that has financial consequences must be recorded.

   There are…