Nicholls v R

[2013] NZSC 39

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1. NOTE

   Nicholls v R [on application from Tallentire v R]

2. Supreme Court of New Zealand       SC10/2013; SC11/2013; [2013] NZSC 39

   19 April 2013

   Chambers and Glazebrook JJ

Criminal law – Theft – By person in special relationship  – Elements of crime –

1. Intention to enter into transactions  – Intention to do so in breach  of relevant obligations  – Whether necessary  to prove intention or concealment  – Crimes Act 1961, s 220.

   [1]       Neal Nicholls and Wayne Douglas, as directors of Capital + Merchant

   Finance Ltd, were found guilty of three charges under s 220 of the Crimes Act

2. 1961 of theft by a person in a special relationship. They were tried by Wylie J sitting  without  a jury.1   The  Court  of Appeal  dismissed  their  appeal  against conviction and sentence.2

   [2]       Messrs Nicholls and Douglas now seek leave to appeal on the basis of what they say was an error in the Crown’s approach at trial with respect to mens

3. rea under s 220. They assert  that leave  should be granted  because  guidance from  this  Court  is required  “for  future  proceedings  to correct  the approach taken by the Crown at the trial”. We do not accept the premise upon which this submission is based. What we do know is that counsel agreed at trial on what the elements  of a s 220 offence  are. Wylie J recorded  that agreement  in the

4. following terms:3

   Prior  to  counsel  making  their  closing  submissions,  I circulated  a draft setting out what I considered to be the elements of the offence created by the section, and invited counsel to comment on the same. They did so, and it was agreed that the elements of the offence are as follows:

5. (a)  Did the accused have control over property?

   (b)  Was the property in the control of the accused, in circumstances

   that  required  him  to  deal  with  the  property,  or  any  proceeds arising from the property, in accordance with the requirements of any other person?

6. (c)  Did the accused know of those circumstances? And,

   (d)  Did  the  accused  intentionally  deal  with  the  property,  or  any

   proceeds of the property, otherwise than in accordance with those requirements?

   [3]       Elements (c) and (d) are the two so-called mens rea requirements. The

7. applicants  in  their  submissions  paraphrase  these  elements.  They  correctly

1 R v Douglas [2012] NZHC 1746.

2 Tallentire v R [2012] NZCA 610, [2013] 1 NZLR 548.

3 At [149].

paraphrase element (c) but do not accurately paraphrase element (d). They then go on to explain why element (d) is incorrect – but it is the paraphrase which is in error. The whole argument advanced by the applicants is built on that false initial premise. The High Court’s approach,  with which the Court of Appeal

agreed and we agree, was endorsed by the Crown at trial, as Wylie J recorded,    5 and remains the Crown’s position now.

...

1. We dismiss the applications  for leave. The test applied by Wylie J and the Court of Appeal was agreed and even now is not in truth challenged. Rather

what  is  put  up  is  the  strawman  of  an  alleged  Crown  approach  at  trial.    10

Mr Davidson QC disputes that it was the Crown approach at trial, but in any

event it was not the approach adopted by Wylie J or the Court of Appeal. When properly analysed, there is no question of general or public importance. Nor are we satisfied that a substantial miscarriage of justice will occur if the proposed

appeal is not heard.  15

Application dismissed.