Russell v Ministry of Economic Development

[2012] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA500/2011
[2012] NZCA 65

BETWEEN  JOHN GEORGE RUSSELL
Applicant

AND  MINISTRY OF ECONOMIC DEVELOPMENT
Respondent

Hearing:         20 February 2012

Court:             Randerson, Potter and Simon France JJ

Counsel:         R A A Weir for Appellant
K A L Bicknell for Respondent

Judgment:      5 March 2012 at 4 p.m.

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. This is an application for special leave to appeal against two convictions for breaching the Receiverships Act 1993.  It was alleged that Mr Russell:

   (a)contrary to s 5(1)(c)(i) of the Act, was appointed receiver of a company at a time when he was also director, or had been a director within two years of the commencement of the receivership;

   (b)contrary to s 5(1)(c)(ii) of the Act, acted as receiver of the company when he was also a director of the mortgagee of the property in receivership.

2. Mr Russell was tried before Judge Wade and convicted.[1]  He unsuccessfully appealed to the High Court.[2]  Leave to appeal to this Court was declined.[3]  Special leave under s 144 of the Summary Proceedings Act 1957 is now sought.

   [1]Ministry of Economic Development v J G Russell DC Papakura CRI 0800‑450‑002437, CRI 0800‑555‑000594, 27 November 2008.

   [2]J G Russell v Ministry of Economic Development HC Auckland CRI 2010‑404‑239, 18 May 2011.

   [3]J G Russell v Ministry of Economic Development HC Auckland CRI 2010‑404‑239, 27 July 2011.

3. It is common ground that the principles set out in R v Slater govern the application.[4]

First proposed appeal ground

[4]      R v Slater [1997] 1 NZLR 211 (CA).

1. As part of its case, the informant introduced into evidence a letter written by Mr Russell on 20 June 2008 to the liquidator of the company.  The letter asserted that Mr Russell had resigned as director on 6 December 2002.  It appended as support for this proposition an undated handwritten note which purported to be Mr Russell’s resignation, effective from 6 December 2002.

2. The focus of challenge before the High Court, and if allowed in the Court of Appeal, is on the District Court’s treatment of this evidence.  The proposition to be advanced is that the Court ignored the evidence, and the question for this Court would be whether this was permissible.  In our view such a question would not be one of general or public importance, and there are no other reasons warranting the consideration of this Court.  It is in essence an inquiry into the proper weight to be accorded a specific item of evidence.  That is not a matter that is capable of general analysis.  We further note the evidence was not ignored.  Rather, other evidence was understandably given greater weight.

Second proposed ground of appeal

1. The second area of inquiry would concern the sentencing process.  Two questions are suggested:

   (a)Must a judge when sentencing refer to Sentencing Act principles?

   (b)Is it permissible to take account of, as an aggravating factor, the conclusion of a court in an unrelated civil proceeding?

2. The first question is not suitable to be considered in isolation.  As has so often been said, the key task on a sentence appeal is to analyse the correctness of the sentence imposed rather than the method by which it is imposed.  In a particular case the absence of any express reference to a relevant Sentencing Act principle may cause doubt as to whether the particular principle was considered by the sentencing judge, but this is a sentence specific inquiry.  There is simply no point in considering the question independent of specific concerns.

3. The second proposed question arises from the informant’s sentencing submissions.  As part of those submissions the District Court was referred to comments made by the Privy Council in an unrelated civil case involving Mr Russell.[5]  Their Lordships were highly critical of Mr Russell’s actions as a receiver, describing them as being carried on “in bad faith, ultimately verging on fraud”.  When sentencing Mr Russell on the present occasion, the District Court referred to those comments in the context of concluding that Mr Russell was an experienced receiver, and rejecting the suggestion that the present breach was other than deliberate.  The High Court on appeal also referred to Mr Russell having “previously been found to have acted improperly in his capacity as receiver”.

   [5]      Downsview Nominees Ltd &Russell v First City Corporation Ltd [1993] 1 NZLR 513 (PC).

4. In our view this question is also not suitable for further appeal.  The touchstone for whether something can be considered on sentencing is generally whether the information is relevant and reliable.  There is little scope for absolute rules about categories of evidence.  Further, there is nothing of general or public importance in this case meriting further inquiry.  The circumstances of this case and of the offender are probably unique and very unlikely to recur.

5. We add for completeness we have no concern at all about the fines totalling $7,000 that were imposed.

6. The application is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent