Legal Research
Cases
Cullen v R

Cullen v R

Case [2015] NZSC 73 29 May 2015

Attribution of Liability

Criminal Law

Type to search within this case.

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND

SC 68/2014
[2015] NZSC 73

BETWEEN	RHYS MICHAEL CULLEN Appellant
AND	THE QUEEN Respondent

Hearing:	10 March 2015
Court:	Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ
Counsel:	N P Chisnall and P J Broad for Appellant M D Downs and Y Moinfar for Respondent
Judgment:	29 May 2015

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Elias CJ)

Rhys Michael Cullen was convicted after trial by Judge and jury of 15 counts under s 246 of the Crimes Act 1961 of receiving stolen vehicles in June 2009. The indictment charged Mr Cullen with receiving the stolen vehicles “together with Tamaki Metals Limited”, although Tamaki Metals was not proceeded against in the indictment.[1]
[1]The fact that Tamaki Metals was not proceeded against was a circumstance that was the subject of a pre-trial appeal to the Court of Appeal by Mr Cullen. The pre-trial appeal was dismissed by the Court of Appeal on the basis that it was not necessary for the Crown to charge the principal to an offence when proceeding against another party: Cullen v R [2013] NZCA 517.
Section 246(1) imposes liability on “every one” who receives any stolen property knowing it to have been stolen or being reckless as to whether it has been stolen. So far as it is relevant, s 246 provides:
246 Receiving
(1)Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.
…
(3)The act of receiving any property stolen or obtained by any other imprisonable offence is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.
…
It was not in dispute at the trial that the vehicles were stolen. Nor was it in dispute that they were found on the yard of the scrap metal business managed by Mr Cullen and owned by the company, Tamaki Metals, of which he is the sole director.
The vehicles had earlier been purchased and brought on to the yard by three employees of Tamaki Metals, Mr Leha, Mr Rogers and Mr McPherson.[2] Their actions in obtaining the vehicles and bringing them on to the yard were treated by the Judge in summing up to the jury as irrelevant to the case against Mr Cullen and Tamaki Metals because the case against Mr Cullen was based on his actions and recklessness[3] only after he became aware that the vehicles were on the yard.[4] The actions of Mr Cullen relied on by the Crown were his permitting the vehicles to remain on the yard for processing into scrap when he became aware of…

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 Cullen v R

Details

AGLC: Cullen v R [2015] NZSC 73
Case: [2015] NZSC 73
Decision Date: 29 May 2015

CaseChat Overview and Summary

Rhys Michael Cullen was convicted of receiving stolen vehicles under the Crimes Act 1961. Cullen, the sole director of Tamaki Metals, was charged jointly with the company. Cullen appealed against the conviction on the basis that the trial judge had erred in directing the jury that his actions and states of mind alone were to be attributed to the company for the purposes of the offence charged. The Supreme Court of New Zealand dismissed the appeal, holding that the trial judge had been correct to direct the jury that Cullen's actions and state of mind were to be attributed to Tamaki Metals. The court rejected Cullen's argument that he had been deprived of a defence that Tamaki Metals had already received the stolen vehicles through the actions and knowledge of employees. The court held that there was no legal or conceptual incongruity in Cullen being charged as a party to an offence committed by the company based on his own actions and state of mind. The appeal against the convictions was dismissed.

Orders