Hitchinson v R - [2010] NZCA 388

IN THE COURT OF APPEAL OF NEW ZEALAND
CA749/2009
[2010] NZCA 388
BETWEENPETER JUSTIN HITCHINSON
Appellant

ANDTHE QUEEN
Respondent

Hearing:14 June 2010

Court:Chambers, Winkelmann and Fogarty JJ
Counsel:P J Davey for Appellant
M A Woolford for Respondent

Judgment:20 August 2010 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Winkelmann J)
[1]       The appellant, Mr Hitchinson, was found guilty by a jury of six counts of theft by a person in a special relationship, an offence pursuant to s 220 of the Crimes Act 1961. He was sentenced by Judge Joyce QC on 6 November 2009 to three years, four months imprisonment. Mr Hitchinson appeals against his conviction on counts 6 and 7 of the indictment which charged:
6        ….. Peter Justin Hitchinson, between 8 September and 13 November 2006 or thereabouts, at Whangarei or elsewhere in New Zealand, having control over property, namely US$195,448.69, on terms and in circumstances that he knew required him to deal with that property in accordance with the requirements of another person, namely Donald Currie, intentionally dealt with the property otherwise than in accordance with those requirements and thereby committed theft.
7        ….. Peter Justin Hitchinson, between 17 October and 23 November 2006 or thereabouts, at Whangarei or elsewhere in New Zealand, having control over property, namely US$65,000, on terms and in circumstances that he knew required him to deal with that property in accordance with the requirements of another person, namely Barry Reiher, intentionally dealt with the property otherwise than in accordance with those requirements and thereby committed theft.

[2] In respect of count 6, the grounds of appeal are that:
(a)the Judge erred in allowing two emails to be admitted as evidence which were, on Mr Hitchinson’s case, evidence of previous consistent statements by Mr Currie and therefore inadmissible by reason of the prohibition contained in s 35 of the Evidence Act 2006 (the Act) against the admission of previous statements of a witness consistent with the witness’s evidence, and
(b)the Judge was wrong to direct the jury that Mr Hitchinson could not rely on a subsequent written acknowledgment by Mr Currie of Mr Hitchinson’s use of the funds as a ratification of that use and hence as a defence to the charge.

[3]       In relation to count 7, the appellant argues that the Judge erred in admitting evidence of an email from the complainant which the appellant says was inadmissible, again by reason of the s 35 prohibition.
[4]       A fourth ground of appeal contained in the notice of appeal, concerning the Judge’s failure to discharge the jury, was abandoned at the hearing.
Appeal in relation to count 6
Factual background
[5]       Mr Hitchinson, through his company, FHXT Fund Managers Ltd (FHXT FM), offered to invest funds for clients in online foreign currency trading. Investors' funds were deposited with a foreign exchange trading platform. Each investor was allocated a client account showing their funds. FXHT FM took commission from the trading and…

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 Hitchinson v R

Details

AGLC: Hitchinson v R [2010] NZCA 388
Case: [2010] NZCA 388
Decision Date: 20 August 2010

CaseChat Overview and Summary

The appeal was brought by Peter Justin Hitchinson, who was convicted of six counts of theft by a person in a special relationship and sentenced to three years and four months imprisonment. The appeal concerns two of the counts, namely count 6, which involved the misuse of US$195,448.69 belonging to Donald Currie, and count 7, which involved the misuse of US$65,000 belonging to Barry Reiher. The appeal against his conviction on counts 6 and 7 was dismissed by the Court of Appeal of New Zealand.

The legal issues in the appeal were: (1) whether the Judge erred in admitting two emails as evidence, which the appellant argued were previous consistent statements and therefore inadmissible, and (2) whether the Judge was wrong to direct the jury that the appellant could not rely on a subsequent written acknowledgment by Mr Currie of the appellant’s use of the funds as a ratification of that use and hence as a defence to the charge.

The Court of Appeal found that the Judge did not err in admitting the emails as evidence. The Court held that the emails were not previous consistent statements within the meaning of s 35 of the Evidence Act 2006, and were admissible under s 7 of the Act as relevant evidence. The Court also held that the Judge did not err in directing the jury that the subsequent written acknowledgment by Mr Currie could not be relied on as a ratification of the appellant’s use of the funds and hence as a defence to the charge. The Court held that the offence was complete at the time of the misapplication of the funds, and that the subsequent written acknowledgment could not relieve the appellant of criminal liability.

In summary, the Court of Appeal dismissed the appeal against the conviction on counts 6 and 7, holding that the Judge’s rulings on the admissibility of the emails and the effect of the subsequent written acknowledgment were correct.

Orders