Elliot v Police
[2025] NZCA 129
•30 April 2025 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA827/2024 |
| BETWEEN | STEPHEN RANIERA RANGI ELLIOT |
| AND | NEW ZEALAND POLICE |
| Court: | Campbell, Dunningham and Harvey JJ |
Counsel: | P N Ross for Applicant |
Judgment: | 30 April 2025 at 11.00 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Following a Judge‑alone trial, the applicant, Stephen Elliot, was found guilty of one charge of theft over $1,000.[1] He was ordered to serve a community‑based sentence and pay $5,000 in reparation to the victim.[2]
[1]Police v Elliot [2024] NZDC 1260 [District Court verdict judgment].
[2]Police v Elliot [2024] NZDC 18522.
Mr Elliot appealed his conviction to the High Court, alleging the police failed to provide full disclosure and the trial Judge erred in his assessment of the evidence. His appeal was dismissed by Grice J on 4 November 2024.[3]
[3]Elliot v Police [2024] NZHC 3244 [judgment under appeal].
Mr Elliot now seeks leave to bring a second appeal against conviction. In his notice of appeal, he says that both the District Court and the High Court erred in failing to consider “contract law under the Contract and Commercial Law Act 2017”. Through counsel he acknowledges that this argument was not advanced in the lower Courts. He also says the case should not have been heard in the criminal jurisdiction but in the civil court.[4]
[4]Although sensibly, this point is not pursued in the written submissions filed in support of the leave application.
The respondent opposes the application for leave, saying the criteria for leave to bring a second appeal are not met.[5] The outcome of the trial came down to factual findings made by the Judge. Those findings were available to the Judge and were properly upheld by the High Court on appeal.
Background
[5]Criminal Procedure Act 2011, s 237(2).
The applicant is an employment advocate who represented the victim in a personal grievance claim against her former employer. He agreed to represent her on a “no win, no fee basis” and, if successful, he would be paid 33 per cent of the settlement funds. That agreement was subsequently changed so that his share was increased to 50 per cent.
The employment dispute settled following mediation and resulted in a $10,000 payout. The applicant advised the victim that as she was on a benefit through Work and Income New Zealand (WINZ), WINZ was likely to stop her benefit and take the whole award of $10,000. He therefore suggested the award be paid to his firm and he would pay her a portion of the award in cash.
His firm, Deco City Employment Law, received the award of $10,000. There were then conflicting documents. First, there was an email purportedly sent from the victim which said that she was happy with the settlement reached but could not take the settlement because she was on a WINZ benefit and would have to pay WINZ back. The email went on to say:
I would rather your business takes all the money so can you send me the invoice. I know you have done more than 10 thousand in work anyway. I want you to have the 10 thousand. But I need the bill to show winz the fee.
There was then a receipt dated 14 June 2021, which was signed by both Mr Elliot and the victim, recording that she had “received the sum of $10,000 in physical cash from Deco City Employment Law Ltd”. This was relied on by Mr Elliot to say that the victim had in fact received a cash sum of $10,000. The victim denied that she had received the money, evidence which was accepted by the Judge.[6] The Judge reached the view that Mr Elliot had retained the cash and refused to give it to the victim, and that he did so dishonestly.[7] Accordingly, he found the charge proven.[8]
[6]District Court verdict judgment, above n 1, at [30]–[31].
[7]At [31].
[8]At [31]–[32].
On appeal, it was argued that the trial Judge erred in his assessment of the evidence, including that the Judge did not properly explain why the victim would sign the receipt if she had not received the money. However, Grice J found there was an evidential foundation for the Judge’s conclusion that, although the victim signed the document, she never received the money.[9] The Judge had given reasons for believing the victim over Mr Elliot.[10]
[9]Judgment under appeal, above n 3, at [35].
[10]At [37].
Grice J also concluded that the failure of the prosecution to disclose an email was a breach of the Criminal Disclosure Act 2008.[11] However, it was an email that Mr Elliot already had in his possession and, in any event, would not have assisted Mr Elliot in his defence.[12] The failure therefore did not lead to a real risk that the outcome of the trial would be affected.
[11]At [32].
[12]At [27] and [31].
As neither ground led to there being a miscarriage of justice, the appeal was dismissed.[13]
Leave to bring a second appeal
[13]At [40]–[41].
Section 237(2) of the Criminal Procedure Act 2011 provides that this Court must not grant leave to bring a second appeal unless it is satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.
Submissions
Applicant’s submissions
The notice of appeal relies on the ground of a miscarriage of justice, arguing that neither the District Court Judge nor the High Court Judge considered contract law under the Contract and Commercial Law Act 2017. Mr Elliot says the victim “simply stated in court that she did not read what she was signing and so was absolved from culpability pertaining to the stipulations contained within the aforementioned documents”. He says it would “set a dangerous [precedent] in case law for a person to be able to exit an agreement simply by pleading ignorance to the law and stating they had been drinking and never read it”.
The submissions subsequently filed by the applicant’s lawyer, Mr Ross, say that it is not obvious from the lower Courts’ judgments “whether the interplay between well‑established contract law doctrines and the sequence of events in this case was considered”. He suggests that the following issues may be relevant:
(a)The principle of non est factum, which he notes is what the victim is saying when she says that she was confused by what she was signing.
(b)Unconscionability, with respect to whether Mr Elliot took unconscientious advantage of the victim.
(c)Dishonesty, which he notes appears to have been inferred from the inherent implausibility of the contractual arrangement. He says the inference of dishonesty does not sit easily “with proof beyond reasonable doubt”.
(d)Mistake, if it is arguable that following the variation there was never agreement to any further variation and so, as a matter of contract, it would fail for lack of agreement.
Counsel also notes that it cannot be correct that Mr Elliot was found to have stolen the full $10,000. However, we note that this does not appear to be the finding, as Mr Elliot was only required to pay $5,000 to the victim, being a 50 per cent share of the settlement sum achieved.
Respondent’s submissions
Counsel for the respondent say the proposed appeal does not engage any question of general or public importance. The only issue raised is whether there has been a miscarriage of justice because the various contractual principles that are outlined by Mr Ross were not fully explored. However, as counsel point out, this was a criminal proceeding and the ultimate question for the Court was whether the elements of theft had been proved beyond reasonable doubt. That is, whether Mr Elliot:[14]
(a)dishonestly;
(b)without claim of right;
(c)used or dealt with the victim’s settlement funds;
(d)after obtaining possession of, or control over, them in whatever manner;
(e)with intent to deprive her permanently of those funds; and
(f)the value of the funds exceeded $1,000.
[14]Crimes Act 1961, s 219(1)(b).
These elements were traversed and found to have been established in both the District Court’s reasons for its verdict and the High Court’s decision.
Whilst signing a receipt can constitute evidence that the money had been paid to the victim, it is not determinative. It was a factual issue for the trial judge to determine in light of all the evidence as to whether the payment had been made. No question of general or public importance is raised, nor has a miscarriage of justice otherwise occurred.
Discussion
The test for granting leave for a second appeal is a high one.[15] Furthermore, an application for leave to bring a second appeal is usually restricted to the grounds of appeal advanced in the first appellate court. An applicant will only be allowed to advance new grounds on a second appeal if there is a real possibility those grounds might demonstrate that a miscarriage of justice occurred at the trial which went uncorrected on the first appeal.[16]
[15]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[38].
[16]Singh v R [2020] NZCA 411 at [20]; S v R [2024] NZSC 140 at [6]; and Pavitt v R [2005] NZSC 24 at [4].
Applying that test in the present case, we do not consider the arguments Mr Elliot wishes to raise have merit. The District Court accepted the contractual framework in which the charge arose, which was the agreement to act for the victim for a 50 per cent success fee. The theft charge turned on a subsequent factual dispute which was whether the agreed amount was paid to the victim. In that regard, there was ample evidence that the purported receipt did not reflect the reality of the situation and this factual finding was affirmed on appeal. Thus, to the extent there was a contractual framework for the payment, the District Court properly acknowledged that and required Mr Elliot to pay the victim $5,000 in reparation.
We are satisfied that the arguments Mr Elliot wishes to raise do not constitute grounds for granting leave to bring a second appeal. They raise no matter of general or public importance, nor do they suggest that a miscarriage of justice may have occurred.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Cathedral Lane Law, Napier for Applicant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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