Purucker v Huebler - [2023] NZHC 1134

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-000058

[2023] NZHC 1134

BETWEEN
MARINA ALEXANDRA PURUCKER

Plaintiff

AND

IRIS HUEBLER

First Defendant

AND

RAINER WOLFGANG HUEBLER

Second Defendant

Hearing: 8 May 2023

Counsel:

G Dewar and J Pietras for Plaintiff First Defendant self-represented

G Downing for Second Defendant

Judgment:

11 May 2023

JUDGMENT (No 2) OF ISAC J

[Application under s 47(2) Evidence Act 2006]

The issue

[1] In this civil proceeding, Ms Purucker alleges that the defendants unlawfully appropriated $873,364.93 from her bank accounts.1 She wishes to adduce certificates of conviction as conclusive evidence that Ms Huebler, the first defendant, committed the offences for which she has been convicted, namely five charges of theft by a person in a special relationship involving $700,000.

1 The first defendant, Ms Huebler, is currently serving a sentence of four years’ imprisonment following her plea to five charges of theft by a person in a special relationship. There is no suggestion the second defendant, Mr Heubler, was a party to his partner’s fraud but rather that moneys stolen from the plaintiff were deposited into a joint bank account over which he had authority and that he is liable for money had and received accordingly.

PURUCKER v HUEBLER [2023] NZHC 1134 [11 May 2023]

[2] At a pre-trial teleconference on 26 April 2023, Ms Huebler indicated she intended to apply for permission under s 47(2) of the Evidence Act 2006 to offer evidence tending to prove that she did not commit the offences of which she has been convicted. In a Minute issued later that day, I indicated that I would address the application at the commencement of the trial.

[3] Having heard from the parties at the outset of the trial on 8 May 2023, I determined that Ms Huebler should not be permitted to offer evidence tending to prove that she did not commit the offences of which she has been convicted. This judgment sets out my reasons.

Legal and factual context

[4]Section 47 of the Evidence Act provides:

47 Conviction as evidence in civil proceedings

(1)When the fact that a person has committed an offence is relevant to an issue in a civil proceeding, proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.

(2)Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—

(a)permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and

(b)if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.

(3)This section applies—

(a)whether or not the person convicted is a party to the proceeding; and

(b)whether or not the person was convicted on a guilty plea.

…

[5] The effect of s 47(1) is…

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.

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Details

Case: [2023] NZHC 1134
Decision Date: 11 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Purucker v Huebler involved Marina Alexandra Purucker suing Iris Huebler and Rainer Wolfgang Huebler. Purucker claimed that the defendants unlawfully appropriated $873,364.93 from her bank accounts. Iris Huebler, the first defendant, had previously been convicted of five charges of theft by a person in a special relationship. Purucker sought to use these convictions as conclusive evidence of Iris Huebler's guilt, while Iris Huebler intended to challenge the convictions under section 47(2) of the Evidence Act 2006.

The court had to decide whether exceptional circumstances existed that would permit Iris Huebler to offer evidence tending to prove that she did not commit the offences for which she had been convicted. The court examined the legal framework provided by section 47 of the Evidence Act, which makes a conviction in subsequent civil proceedings conclusive evidence that the person convicted committed the offence, unless exceptional circumstances exist.

The court found that the convictions should stand as conclusive proof of Iris Huebler's guilt, as there were no exceptional circumstances that would allow her to challenge the convictions. The court considered that the policy considerations underpinning section 47, such as the finality of litigation and the protection of the court's processes from abuse, were paramount. The court also noted that Iris Huebler had ample opportunity to challenge the convictions during her criminal proceedings, which she did not do.

However, the court allowed Iris Huebler to present evidence to dispute the remaining $173,364.93 claimed by Purucker, which was not covered by the convictions. This decision enabled Iris Huebler to address specific allegations not included in her convictions.

In conclusion, the court dismissed Iris Huebler's application under section 47(2) and upheld the conclusive proof presumption for the convictions. Iris Huebler was, however, permitted to dispute the remaining amount claimed by Purucker.

Orders