Hill v The Queen - [2017] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/2016
[2017] NZCA 286

BETWEEN	RICHARD HENRY HILL Appellant
AND	THE QUEEN Respondent

Hearing:	14 February 2017
Court:	Miller, Mallon and Peters JJ
Counsel:	R B Squire QC for Appellant I R Murray for Respondent
Judgment:	6 July 2017 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

The appellant, Mr Hill, appeals against his conviction on a representative charge of criminal breach of trust.[1] Mr Hill was convicted on 26 July 2016, following a judge-alone trial before Judge Crosbie in the District Court at Napier.[2] Mr Hill was sentenced to eight months’ home detention and 100 hours community work.

Grounds of appeal

[1]Crimes Act 1961, s 229.

[2]R v Hill [2016] NZDC 13909.

The appeal is brought pursuant to s 385(1) Crimes Act 1961, the prosecution having been commenced prior to 1 July 2013.[3] The grounds of appeal are, first, that the verdict was unreasonable and, secondly, that there has been a miscarriage of justice in that the Judge failed to properly apply the required burden and standard of proof.
[3]Criminal Procedure Act 2011, s 397(2).
Section 385(1) provides:
(1)On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—
(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) that on any ground there was a miscarriage of justice; or
(d) that the trial was a nullity—
and in any other case shall dismiss the appeal:
provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
On the face of the provision, only a jury verdict may be appealed as being unreasonable. However, the Courts treat that ground as equally available for an appeal against a judge-alone verdict.[4]

Charge

[4]R v Connell [1985] 2 NZLR 233 (CA) at 237; R v Eide [2005] 2 NZLR 504 (CA) at [19]–[21]; and R v Slavich [2009] NZCA 188 at [30].

The charge against Mr Hill was:[5]
... that Richard Henry Hill between 1 October 2003 and 14 June 2005 at Napier being a trustee, dishonestly and contrary to the terms of the trust, converted client funds from the McKay Hill Lawyers Trust Account, of which he was a trustee, to a use not authorised by the said trust.
[5]Crimes Act, s 229.
Accordingly, the Crown was required to prove that:
(a)between 1 October 2003 and 14 June…

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 Hill v The Queen

Details

AGLC: Hill v The Queen [2017] NZCA 286
Case: [2017] NZCA 286
Decision Date: 6 July 2017 at 10.30 am

CaseChat Overview and Summary

In this case, the appellant, Richard Henry Hill, appeals against his conviction for criminal breach of trust, as charged under section 229 of the Crimes Act 1961. The appeal was heard by the Court of Appeal of New Zealand, with Miller, Mallon, and Peters JJ presiding. Mr Hill was convicted following a judge-alone trial in the District Court at Napier and sentenced to eight months’ home detention and 100 hours of community work. The grounds of appeal were that the verdict was unreasonable and that there had been a miscarriage of justice due to the Judge's failure to properly apply the burden and standard of proof.

The legal issues in the case centred around whether the Judge had erred in assessing the evidence presented by the parties and whether the verdict was unreasonable or if there had been a miscarriage of justice. The Crown had to prove that Mr Hill was a trustee of client funds in the McKay Hill Lawyers Trust Account, that he converted those funds to a use not authorised by the clients, and that he did so dishonestly. The act of conversion in question was the repeated transfer of client funds in the trust account to the firm’s office account by Ms Anne McAllister, the firm’s trust account manager. The trial hinged on whether Mr Hill had authorised these transfers and whether he had done so dishonestly.

The Court of Appeal found that the Judge's assessment of the evidence was open to him and that the Judge's reasons for rejecting Mr Hill’s evidence and accepting Ms McAllister’s evidence were sound. The Court held that the Judge had not erred in his treatment of the evidence and that the verdict was not unreasonable. The Court also found that there had been no miscarriage of justice, as the Judge had properly applied the burden and standard of proof. Consequently, the appeal against the conviction was dismissed.

In summary, the Court of Appeal upheld the conviction of Richard Henry Hill for criminal breach of trust, finding that the Judge had correctly assessed the evidence and that there had been no miscarriage of justice. The appeal was dismissed, and the conviction stands.

Orders