A SUPPRESSION ORDER EXISTS IN RESPECT OF THE PUBLICATION OF THE NAME AND ANY IDENTIFYING PARTICULARS OF THE ACCUSED REFERRED TO IN THESE VERDICTS AS "A".
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-004-018433 [2013] NZHC 731
THE QUEEN
v
ROBERT BARRY WHALE PAUL WILLIAM CROPP A
Hearing: 18-22, 25-28 February, 1, 4-8, 11-15, 21, 25 and 26 March 2013
Counsel: B H Dickey and M Thomas for Crown
P Davison QC and R Woods for R B Whale
J R Billington QC and D Pannett for P W CroppM D Lloyd for A Judgment: 12 April 2013
VERDICTS OF LANG J
This judgment was delivered by me on 12 April 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
R V ROBERT BARRY WHALE HC AK CRI-2011-004-018433 [12 April 2013]
PART ONE: BACKGROUND AND INTRODUCTORY MATTERS [5]
The personnel involved in the governance, management and operation of the companies
[16]
The loan approval process [28] The regulatory framework within which the companies operated [35] Dominion’s Trust Deed [37] North South’s Trust Deed [42]
Fundamental principles
Onus and standard of proof
[48]
Separate trials [52]
Other matters [55]
Elements of the offence
a) Control
b)The obligation to deal with the property in accordance with the requirements of another person
c) Knowledge of the obligation
d)Intentionally dealing with the property otherwise than in accordance with the obligation
[56] [59] [61]
[63] [64]
The allegations in greater detail [66]
Principals and parties [71]
PART TWO: THE ALLEGATIONS BASED ON INTENTIONAL FAILURE TO OBAIN TRUSTEE’S PRIOR WRITTEN CONSENT TO RELATED PARTY TRANSACTIONS
Background to Counts 1, 2 and 3 – the Norfolk Manor project
[74]
Count 1 – the loan to Norfolk Manor [79]
Issues [84]
Did Mr Whale control the investors’ funds that Dominion used to make the advance to Norfolk Manor?
Did Mr Whale know between August 2004 and July 2007 of the restriction that the Trust Deed imposed on Dominion in respect of related party lending?
Did Mr Whale intend to assist Dominion to breach the restriction on related party lending?
[85] [90] [104]
Verdict [109] Count 2 – The loan by Dominion to WAFD [110] Background [111]
1. Mr Whale
Issues
Who controlled the investors’ funds that Dominion used to make the loan to
WAFD?
Did Mr Whale assist Dominion to breach the prohibition on related party lending?
Did Mr Whale know of the prohibition on related party lending as at 31 March
2008?
[123]
[124] [127] [129]
Verdict [150]
1. Mr Cropp
Issues
Did Mr Cropp know of the prohibition on related party lending in Dominion’s
Trust Deed?
[151] [153]
Did Mr Cropp intentionally cause Dominion to breach the prohibition on related party lending?
[169]
Verdict [207] Culpability [208] Count 3 – the WAFD SSA [224] Preliminary issues [231]
Was the payment underlying Count 3 a related party transaction for the
purposes of North South’s Trust Deed?
Did the Trust Deed nevertheless exclude the payment from being a…
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- AGLC
- R v Whale [2013] NZHC 731
- Case
- [2013] NZHC 731
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and legal issues, including the burden of proof, the concept of control over property, and the obligation to deal with property in accordance with the requirements of another person. The court concluded that the Crown had not proved its case beyond reasonable doubt for all but one of the accused in relation to certain charges. The court found Mr Whale not guilty on all counts, and Mr A not guilty on all counts. The court found Mr Cropp guilty on Counts 2, 3, 4, and 5.
The court held that the obligation to carry on business in a prudent and businesslike manner did not amount to a "requirement" for the purposes of section 220 of the Crimes Act 1961. The court held that liability under section 220 would only arise where the accused was subject to an obligation to use or apply identified property in a particular way. The court held that the obligation imposed by Clause 5.3(a) of North South's Trust Deed was insufficient to give rise to a requirement for the purposes of section 220.
The final orders of the court were that Mr Whale was found not guilty on all counts, Mr Cropp was found guilty on Counts 2, 3, 4, and 5, and Mr A was found not guilty on all counts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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