Cullen v R - [2014] NZCA 325

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA769/2013
[2014] NZCA 325

BETWEEN	RHYS MICHAEL CULLEN Appellant
AND	THE QUEEN Respondent

Hearing:	16 June 2014
Court:	White, Keane and MacKenzie JJ
Counsel:	S D Cassidy, P Broad and G A Harvey for Appellant K Raftery for Respondent
Judgment:	14 July 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

The appellant, Mr Cullen, appeals against his convictions following a second jury trial in the Manukau District Court on 15 counts of receiving stolen motor vehicles under s 246 of the Crimes Act 1961. Mr Cullen’s sentencing on these convictions is awaiting the outcome of this appeal.
At his second trial Mr Cullen was charged with being a party to offending by Tamaki Metals Ltd (TML), the lessee of the scrap metal yard in South Auckland where the stolen motor vehicles were found by the police.
Mr Cullen appeals against his convictions on the grounds that the District Court Judge, Judge McNaughton, was wrong to decide as a matter of law that Mr Cullen was the only “directing mind” of TML and that he consequently misdirected the jury on that issue as well as the issues of Mr Cullen’s “secondary liability” and the point in time at which “recklessness” was to be assessed under s 246 of the Crimes Act. It is contended that a miscarriage of justice arose as a result of these errors.[1]

Background

[1]Crimes Act 1961, s 385(1)(b) and (c).

There is no dispute that the evidence at the trial established that Mr Cullen was the sole director and manager of TML, which held the necessary scrap metal dealer’s licence for the operation of the yard under the Secondhand Dealers and Pawnbrokers Act 2004 (the SDP Act). He was in fact named on the licence as the only person involved in its management. The evidence also established that he was: in control of TML’s only shareholder, Tamaki Rugby League Inc; at TML’s yard almost every day running the business and the Tamaki Rugby League Academy from buildings there; in control of TML’s accounts and purchases; in charge of TML’s second hand dealer’s records and second hand licence lists, as required by s 42(1) of the SDP Act; responsible for keeping stolen cars off the yard; and referred to by employees as “boss” or “doc”.
There is also no dispute that the evidence at the trial established that, in addition to Mr Cullen, there were three employees of TML, Messrs Leha, Rogers and McPherson, who were authorised by certificates issued by TML under s 19(2) of the SDP Act to purchase secondhand vehicles from members of the public and who in fact did so using TML’s funds. These employees followed “a buyer’s guide”, which Mr Cullen had prepared, dated 1 January 2009. The guide principally emphasised that the police had given an official…

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 [2014] NZCA 325
Case: [2014] NZCA 325
Decision Date: 14 July 2014 at 3.00 pm

CaseChat Overview and Summary

In the case of Cullen v R, Rhys Michael Cullen appealed against his convictions for receiving stolen motor vehicles under the Crimes Act 1961. Cullen was the sole director and manager of Tamaki Metals Ltd (TML), which held a scrap metal dealer's licence. Cullen's appeal was based on the grounds that the District Court Judge incorrectly attributed the acts and states of mind of Cullen alone to TML and misdirected the jury on this issue, as well as on the issues of Cullen's secondary liability and the point in time at which recklessness had to be assessed. The Court of Appeal examined the legal and actual management structures of TML and agreed with the District Court Judge's determination that only the acts and state of mind of Cullen could be attributed to TML. The Court further found that the Judge's directions to the jury on Cullen's secondary liability and the timing of recklessness were adequate. As none of the grounds of appeal were substantiated, the appeal was dismissed.

Orders