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Howe v The Queen

Howe v The Queen

Case [2016] NZHC 926 9 May 2016

Appeal

Misrepresentation

Breach of Contract

Unconscionable Conduct

Dishonesty

Claim of Right

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000308 [2016] NZHC 926

BETWEEN
STEPHEN HOWE

Appellant

AND

THE QUEEN Respondent

Hearing: 7 December 2015

Appearances:

T Simmonds for Appellant
R Willox for Respondent

Judgment:

9 May 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 9 May 2016 at 9.00 am pursuant to Rule 11.5 of the High Court Rules

………………………………………………
Registrar / Deputy Registrar

Counsel/Solicitors:
T Simmonds, Barrister, Auckland
R Willox, Meredith Connell, Auckland

HOWE v R [2016] NZHC 926 [9 May 2016]

Introduction

[1] The appellant, Mr Howe, was convicted in the District Court at Auckland on

22 June 2015 following a four-day judge-alone trial before Judge Sinclair, on three charges of accessing a computer system for a dishonest purpose (charges 6, 8 and 10);1 one charge of causing loss by deception (charge 12);2 and four charges of
dishonest use of a document (charges 7, 9, 11 and 13).3 He was sentenced on

10 September 2015 to 12 months’ home detention, together with full reparation

($198,272.04) being paid within seven days.

[2] Mr Howe initially faced 15 charges. They all related to alleged over-charging for contract services that he, through JT Management Ltd (JTML), provided as Chief Financial Officer (CFO) to Buckley Systems Ltd (BSL). Seven of the charges were dismissed at trial. The eight charges on which Mr Howe was convicted related to four payments made in connection with an alleged racing sponsorship alignment with Mr Lightfoot, the then Chief Executive Officer (CEO) of BSL.

[3] Mr Howe appeals against his convictions on the primary ground that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred. In essence, Mr Howe argues that the Crown has not proved beyond reasonable doubt that he acted dishonestly and without claim of right.

Background

[4] During the relevant time, Mr Howe was a joint director of JTML, a company used (as he put it) for his consultant work for BSL. No issue was taken by Mr Howe over JTML being technically the contracting party.

[5] BSL is an engineering company and a leading manufacturer of parts for the semi-conductor, energy, research and medical industries. Mr Bill Buckley is the
founder and managing director of BSL.

1      Crimes Act 1961, s 249(1)(a); maximum penalty of seven years’ imprisonment.
2      Section 240(1)(d); maximum penalty of three years’ imprisonment.
3      Section 228(b); maximum penalty of seven years’ imprisonment.

[6] In January 2010, JTML entered into a contract with BSL, pursuant to which Mr Howe was appointed cost management accountant at an hourly rate of $57.50. He submitted invoices on behalf of JTML on a weekly or monthly basis.

[7] In July/August 2010, Mr Howe was recommended by Mr Lightfoot, the CEO

of BSL, for the CFO position that had become vacant.

[8] On 30 August 2010, JTML entered into a further contract with BSL, pursuant to which Mr Howe was appointed CFO. That contract provided for payment at a daily…

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 Howe v The Queen

Details

AGLC: Howe v The Queen [2016] NZHC 926
Case: [2016] NZHC 926
Decision Date: 9 May 2016

CaseChat Overview and Summary

The appeal in Howe v The Queen was heard by Hinton J in the High Court of New Zealand. The appellant, Mr. Howe, appealed against his convictions on eight charges related to alleged overcharging for contract services provided to Buckley Systems Ltd (BSL) as Chief Financial Officer (CFO) of JT Management Ltd (JTML). The primary ground for appeal was that the District Court Judge erred in her assessment of the evidence, leading to a miscarriage of justice. The legal issues in the case revolved around the interpretation of the terms "dishonesty" and "claim of right" in the context of the charges against Mr. Howe. The court had to determine whether the Crown had proven beyond reasonable doubt that Mr. Howe acted dishonestly and without claim of right.

The High Court found that the District Court Judge had not erred to the extent of causing a miscarriage of justice. The Judge's findings were supported by the evidence presented, and the Court could not say that there was a real risk that the outcome of the trial was affected or that the trial was unfair. The Court held that the Crown had not discharged the high standard of proof required to establish that Mr. Howe acted dishonestly and without claim of right. Consequently, the eight convictions entered in the District Court were quashed.

The final orders of the Court were that the eight convictions entered in the District Court are quashed. This outcome resulted in the appellant being acquitted of all charges against him.

Orders