Patrick Dean Norris v The Queen - [2013] NZSC 138

IN THE SUPREME COURT OF NEW ZEALAND

SC 127/2013
[2013] NZSC 138

BETWEEN	PATRICK DEAN NORRIS Applicant
AND	THE QUEEN Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	Applicant in person M J Inwood for Respondent
Judgment:	4 December 2013

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Norris was convicted in a judge alone trial (Judge Behrens QC) of one count of theft by a person in a special relationship pursuant to s 220 of the Crimes Act 1961.[1] He was sentenced to home detention, community work and reparation.[2]
[1]R v Norris DC Nelson CRI-2011-042-001272, 16 October 2012.
[2]R v Norris DC Nelson CRI-2011-042-001272, 24 January 2013.
On 31 October 2013 the Court of Appeal dismissed Mr Norris’ appeal against conviction but allowed his sentence appeal in part.[3]
[3]Norris v R [2013] NZCA 526 (Ellen France, Rodney Hansen and Mallon JJ) [Appeal decision].
Mr Norris now seeks leave to this Court to appeal against the refusal to quash his conviction. He also applies for bail pending any appeal.

Background

In August 2009, Mr Norris was appointed the liquidator of Astra Enterprises Limited (Astra). In that capacity, he received and deposited Astra’s assets of $80,960.51 into the trading account of his business, Norris Management Services. The funds were sufficient to satisfy Astra’s identified debts but three months later those funds were dissipated, with neither the shareholders nor the creditors receiving any payment. There appears to be no dispute that Astra’s money had been used to buy items for and repay debts of Norris Management and Mr Norris.[4]
[4]Appeal decision at [19].
The Crown case was that Mr Norris had dealt with Astra’s property otherwise than in accordance with his duties as a liquidator. An important plank of the Crown case was that Mr Norris had created invoices totalling some $80,000 to try and justify the dissipation of the Astra funds. The Crown case was that little work had been done on the file. This was supported by three strands of evidence:[5]
(a)evidence of two employees who were employed at Norris Management over some of the relevant period;
(b)evidence of the limited contact between Mr Norris and those who might have expected to hear from him in relation to the liquidation; and
(c)expert evidence from Mr Laurence Chilcott, an insolvency practitioner.

The District Court’s reasons for verdict

[5]Appeal decision at [12]–[15].

Judge Behrens found each of the four elements of s 220 proved beyond reasonable doubt:
(a)Mr Norris had control over the Astra funds.
(b)That control was in circumstances that required him to account for or deal with that property, or any proceeds arising from it.[6] There were requirements with regard to the creditors that were binding on Mr Norris.[7]
(c)Mr Norris knew of those circumstances, being an inference available from his experience as a liquidator generally, his position regarding the lawfulness of his depositing the Astra funds into the Norris Management bank account and the evidence of the…

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 Patrick Dean Norris v The Queen

Details

AGLC: Patrick Dean Norris v The Queen [2013] NZSC 138
Case: [2013] NZSC 138
Decision Date: 4 December 2013

CaseChat Overview and Summary

Patrick Dean Norris sought leave to appeal to the Supreme Court of New Zealand against the decision of the Court of Appeal, which dismissed his appeal against conviction for theft by a person in a special relationship under the Crimes Act 1961. Norris, a liquidator, was convicted of misappropriating funds from the company Astra Enterprises Limited, which he was appointed to liquidate. The Court of Appeal upheld the conviction but reduced the sentence. Norris applied to the Supreme Court for leave to appeal against the conviction and also sought bail pending the appeal. The Court was tasked with determining whether the appeal raised an issue of general or public importance, commercial significance, or a substantial risk of miscarriage of justice.

The key legal issues were whether Norris owed a duty to creditors to account for a company's funds as a liquidator and whether the trial judge's finding of a dishonest course of action was supported by the evidence. Norris argued that liquidators do not owe a fiduciary duty to creditors and that his actions, if anything, amounted to overcharging rather than theft. The Court of Appeal had previously rejected these arguments, finding that Norris's duties as liquidator required him to account for the company's funds, and that the evidence supported the finding of a dishonest course of action.

The Supreme Court found that the Court of Appeal had correctly applied the law to the facts. It noted that the funds were not available for Norris's personal use and that his actions went beyond mere overcharging. The Supreme Court concluded that no issue of general or public importance or commercial significance arose, and there was no substantial risk of a miscarriage of justice. The Court also found that Norris's proposed new evidence would not have reasonably affected the verdict.

The application for leave to appeal was dismissed, and as a result, the Court did not need to address the bail application. The decision of the Court of Appeal stood, affirming Norris's conviction for theft by a person in a special relationship.

Orders