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McGurk v R

McGurk v R

Case [2015] NZCA 148 15 May 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA415/2014
[2015] NZCA 148

BETWEEN	MICHAEL ANTHONY MCGURK Appellant
AND	THE QUEEN Respondent

Hearing:	12 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	M L Wotherspoon for Appellant B D Tantrum and M J Hammer for Respondent
Judgment:	15 May 2015 at 11.30 am

JUDGMENT OF THE COURT

AThe appeals against conviction and sentence are dismissed.
BThe appellant is to surrender to bail by presenting himself to the Registry (Criminal Counter, Level 1) at the Auckland District Court no later than 3.00 pm, seven days from the date of this judgment to commence his sentence of home detention and community service. The sentence is to commence on the date of his surrender.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

The appellant Michael McGurk was found guilty on 7 February 2014, following a jury trial in the Auckland District Court, of one count of theft by a person in a special relationship pursuant to s 220 of the Crimes Act 1961.
The indictment alleged that:
… between 16 November 2009 and 24 November 2009, having control over gaming machine proceeds on terms or in circumstances that he knew required him to deal with the gaming machine proceeds in accordance with the requirements of the Nautilus Foundation (formerly the Pacific Sports and Community Trust) as set out in the venue agreement, intentionally dealt with the gaming machine proceeds otherwise than in accordance with those requirements.
The “venue agreement” referred to above is one of two agreements between Nautilus Foundation (Nautilus), the owner of the gaming machines, and Albion Hotel 2005 Ltd (the company that ran Albion Hotel) (the company), according to which Albion Hotel (the hotel) operated gaming machines.[1] The relevant requirement was contained in cl 18 of the second of these agreements. The appellant was owner and sole director of the company. Clause 18 required the company to keep all gaming machine proceeds separate from hotel trading revenue prior to banking it in Nautilus’ account. The hotel staff, instead, banked gaming machine proceeds into the company’s trading account. This caused there to be a significant shortfall in gaming machine funds banked into Nautilus’ account at the end of the period 16–24 November, the week during which the company was placed in receivership. The receivership meant the shortfall of $35,447.13 was never recovered.
[1]The agreement was signed by a trustee on behalf of Nautlius’ predecessor.
The company’s failure to keep gaming machine proceeds separate was attributed to the appellant. District Court Judge Ryan sentenced the appellant to five months’ home detention and 100 hours’ community work.[2]
[2]R v McGurk DC Auckland CRI-2010-004-19436, 29 July 2014 [sentencing decision].
The appellant appeals against both conviction and sentence. The most significant, but by no means the only issue in this appeal, is whether the jury was entitled in law to attribute the company’s breach of cl 18 to the appellant.

The facts

Gaming machines at the Albion Hotel

The company owned and operated…

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 McGurk v R

Details

AGLC: McGurk v The Queen [2015] NZCA 148
Case: [2015] NZCA 148
Decision Date: 15 May 2015 at 11.30 am

CaseChat Overview and Summary

Michael McGurk appealed against his conviction and sentence in relation to theft by a person in a special relationship. The Court of Appeal found that there was sufficient evidence to infer that McGurk knew of the obligations in relation to the gaming machine proceeds and that he authorised the non-compliant handling of the proceeds. The Court found that there was no error in the trial Judge’s summing up. The appeal against sentence was also dismissed.

Orders