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Norris v R

Norris v R

Case [2013] NZCA 526 31 October 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/2013
[2013] NZCA 526

BETWEEN	PATRICK DEAN NORRIS Appellant
AND	THE QUEEN Respondent

Hearing:	15 August 2013
Court:	Ellen France, Rodney Hansen and Mallon JJ
Counsel:	Appellant in person H W Ebersohn and M J Inwood for Respondent
Judgment:	31 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

A The application for leave to adduce new evidence is dismissed.
BThe appeal against conviction is dismissed.
C The appeal against sentence is allowed in part. The order that the appellant pay reparation of $31,724.42 to the Manleys is quashed. An order that the appellant pay $40,000 reparation to Astra Enterprises Ltd (in liquidation) is substituted on the conditions set out in [108] below.
DThe appellant must resume his home detention sentence. He is to be at the address for home detention at 10.00 am on 4 November 2013, and remain there to await the probation officer and the security company representative.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No
Introduction  [1]
The factual narrative  [4]
The trial  [11]
The Judge’s reasons for verdict  [19]
Does s 220 apply to this case?  [28]
     The elements of the offence  [31]
     The submissions  [32]
     The approach to s 220 – New Zealand  [36]
     The position in England and in Australia  [39]
     The obligations on Mr Norris as liquidator  [47]
The proposed new evidence  [61]
     Should the new evidence be admitted?  [71]
Procedural matters  [90]
The s 344A application[91]
Section 347 application not dealt with prior to trial[100]
District Court rather than High Court[103]
Sentence  [105]
Result  [108]

Introduction

Patrick Norris was convicted after a trial before a judge alone of theft by a person in a special relationship under s 220 of the Crimes Act 1961.[1] He was sentenced by the trial Judge, Judge Behrens QC, to 10 months home detention, 100 hours community work, and was ordered to pay reparation of $31,724.42 to creditors, Mr and Mrs Manley.[2] The offending related to monies Mr Norris received as liquidator of a company called Astra Enterprises Ltd (Astra), of which the Manleys were creditors. Mr Norris banked this money into the trading account of his business, Norris Management Services Ltd (Norris Management) and it was used largely to repay debts of Norris Management or of Mr Norris.
[1]R v Norris DC Nelson CRI-2011-042-1272, 16 October 2012 [reasons for verdict].
[2]R v Norris DC Nelson CRI-2011-042-1272, 24 January 2013 [sentencing remarks].
Mr Norris appeals against his conviction and sentence. The conviction appeal raises issues about the application of s 220 to Mr Norris as a liquidator. In addition, Mr Norris says there is fresh evidence that might reasonably have led to a not guilty verdict. Finally, Mr Norris raises various procedural issues that are said to give rise to a miscarriage. On the sentence appeal, Mr Norris challenges the ability to make a reparation…

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 Norris v R

Details

AGLC: Norris v R [2013] NZCA 526
Case: [2013] NZCA 526
Decision Date: 31 October 2013 at 2.30 pm

CaseChat Overview and Summary

Patrick Norris appeals against his conviction and sentence for theft by a person in a special relationship under section 220 of the Crimes Act 1961. The offending related to monies Mr Norris received as liquidator of a company called Astra Enterprises Ltd (Astra), of which the Manleys were creditors. Mr Norris banked this money into the trading account of his business, Norris Management Services Ltd (Norris Management) and it was used largely to repay debts of Norris Management or of Mr Norris. Mr Norris appeals against his conviction on the grounds that section 220 of the Crimes Act does not apply to him as a liquidator and that there is fresh evidence that might reasonably have led to a not guilty verdict. In addition, Mr Norris raises various procedural issues that are said to give rise to a miscarriage. On the sentence appeal, Mr Norris challenges the ability to make a reparation order in favour of the Manleys. The Court of Appeal dismisses the application for leave to adduce new evidence and the appeal against conviction. The appeal against sentence is allowed in part. The order that Mr Norris pay reparation of $31,724.42 to the Manleys is quashed. An order that Mr Norris pay $40,000 reparation to Astra Enterprises Ltd (in liquidation) is substituted. Mr Norris must resume his home detention sentence. He is to be at the address for home detention at 10.00 am on 4 November 2013, and remain there to await the probation officer and the security company representative.

Orders