Sizemore v The Queen

[2005] NZCA 298

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA290/05

THE QUEEN

v

SHIRLEY MARILYN SIZEMORE

Hearing:29 November 2005

Court:Hammond, John Hansen and Doogue JJ

Counsel:L A Andersen for Appellant

E M Thomas for Crown

Judgment:5 December 2005 

JUDGMENT OF THE COURT

The conviction is quashed.  The reparation order is set aside.  New trial ordered.

REASONS

(Given by John Hansen J)

Introduction

[1]        The appellant was convicted in the Dunedin District Court, on 13 July 2005, of one count of theft by intentionally dealing with property otherwise than in accordance with the requirements on which it was held, following a Judge alone trial in the indictable jurisdiction.  She now appeals against her conviction.

Background

[2]        The appellant was the owner and manager of a rest home when the 80 year old complainant moved into the premises.  She advised the complainant that he needed to have less than $15,000 in his savings accounts to be eligible for a particular government subsidy.  The complainant had more than this in his account.  On 15 March 2002 the appellant drove the complainant to the bank where he withdrew $10,000 from his term deposit account which he later put into a trust account.  He then withdrew an additional $2,000 because he believed he would need dental treatment in the near future.  The complainant alleges the appellant filled out the body of the complainant’s withdrawal slip for the $2,000 and he endorsed it with his signature.

[3]        When they returned to the rest home the complainant gave the appellant $1,900 in the form of 19 $100 notes.  Soon afterwards he gave her a further $100 note, a total of $2,000.  The complainant says that he was told by the appellant she would put it in an envelope and place it in the safe.  She commented it would be there when he wanted it. 

[4]        In the event the complainant did not have the dental work carried out.  He later asked the appellant if she still had the $2,000, and she confirmed she did, saying it was in the safe.  A Mr Wilson, who was employed as a handyman at the rest home, heard this conversation and confirmed what the complainant said.

[5]        Over two years later, in June 2004, the complainant told the rest home staff he wanted his $2,000 that had been secured in the safe by the appellant.  The safe was forced open in the presence of two solicitors, the appellant and Mr Sizemore.  The money was missing.  The appellant denied she had ever received $2,000 from the complainant.  She further denied filling out the withdrawal slip, or even being with him at the bank.  She said there was never any conversation where she acknowledged she had the money and was keeping it in the safe on his behalf.

[6]        The Judge found the critical issue was whether or not the appellant had been given the money for safe keeping and whether she had repaid it.  He said this turned on credibility, which he determined against the appellant.  He also held that based on the handwriting evidence, and the evidence of the appellant’s daughter, the withdrawal slip had been filled in by the appellant.

[7]        The Judge was satisfied that the appellant had been given the $2,000 but she had never repaid it.  On the evidence he was unable to determine beyond reasonable doubt when the money was misappropriated. 

[8] Because of this the Judge was faced with a legal submission that the Crown was unable to prove an offence under s 220. This submission arose because of the repeal of Part 10 of the Crimes Act 1961 and its replacement with a new Part 10 by the Crimes Amendment Act 2003.

[9]        The indictment followed the wording of s 220 which came into effect on 1 October 2003.  Section 220 reads:

220     Theft by person in special relationship

(1)     This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person—

(a)     to account to any other person for the property, or for any proceeds arising from the property; or

(b)     to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.

(2)     Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.

(3)     This section applies whether or not the person was required to deliver over the identical property received or in the person's possession or control.

(4)     For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.

[10]     Counsel submitted that for there to be an offence under that section the Crown had to show misappropriation of money after that date.  At [27] the Judge said:

[27]     I need to be clear that I am satisfied that the accused in effect stole $2,000.00 from the complainant.  I have not followed the precise wording provided in the previous provision in the Crimes Act prior to 1 October 2003, and nor have I repeated the express wording of the charge itself.  I am simply accepting that it was theft in a broad sense.

[11]     The Judge noted that without the amendment to the legislation the Crown would not have been required to prove precisely when the money was taken, provided it was within the dates specified in the indictment.  He expressed a view that he thought it unlikely Parliament would have intended an accused could be able to escape liability simply because of the amendment.  He observed the case was similar in a practical sense to that which is often faced by juries with charges of burglary and receiving.  He said:

[30]      …  If a jury is satisfied beyond reasonable doubt that an offender is either the burglar or the receiver, it is then a question of how the matter is resolved.  I am aware that there might be some Australian authority that suggests otherwise, but generally a jury would be directed on the basis that they look at where the preponderance of the evidence might be.  In other words, and I daresay that it is almost like introducing the civil standard into a criminal trial, they are invited to look at the evidence to see which is the more likely possibility.  Was the offender the receiver or the burglar?  The other way of dealing with that situation would be to invite the jury to return a verdict of guilty on the lesser charge, which would be receiving.

[12]     The Judge went on to record that he considered the possibility of amending the indictment but no details are given as to the form of amendment suggested.  The Judge also said there was some attraction to such an idea.

[13]     However, he concluded:

[33]     Ultimately, I do not accept that Parliament would have intended that the accused escape liability simply because of the changes in the legislation, which gives rise to a new and different charge.  Whether it is an offence prior to 1 October 2003 or after, the maximum penalty remains the same, as does her culpability.  Viewed in that way there really is no prejudice to the accused if I choose one or the other.

Conclusion

[34]     In all the circumstances, rather than go down the path of amendment as it were, which in any event still faces the problem that I do not know precisely when the money was taken, I have decided to take a view that is somewhat similar I suppose to the situation previously discussed of the burglary and receiving charges.  I am going to take the most favourable view of the facts from the accused’s perspective.

[35]     In this situation, the view I take is that she had held the money for the complainant until just prior to 30 June 2004, if counsel can still understand what I am saying.  In my view it would have been worse from a culpability perspective if she had taken the money immediately and left the complainant with the idea that his money was still secure in the safe.  That would have been prior to 1 October 2003.

[36]     As I say the more favourable view of the facts is that the money was not taken by the accused until just prior to when the safe was opened.  Therefore the charge as it is currently framed meets the situation.  I return a guilty verdict.

Grounds of appeal

[14]     The appellant appeals against conviction.  Although the notice of appeal records three grounds of appeal, only one was ultimately advanced.  That ground is the District Court Judge erred in entering a conviction when the offence could not be proved beyond reasonable doubt to have occurred after 1 October 2003, being the date of the commencement of the amended theft provision relied on in the indictment.

Submissions

[15] Mr Andersen raised a short and succinct point. He said the effect of the Crimes Amendment Act 2003 was to repeal all of the previous provisions contained in Part 10. It replaced them with new provisions that took effect from 1 October 2003.

[16]     While accepting the Crown would not normally have to prove the date of misappropriation, he submitted the amendment to the Act changed this.  In the absence of a finding of when the misappropriation occurred, Mr Andersen submitted that as there were no transitional provisions the Crown could not prove either offence.  He submitted that s 220 came into effect on 1 October 2003 and an offence under that section could not take place unless there was misappropriation of money after that date. 

[17]     Pursuant to s 19 of the Interpretation Act 1999 he submitted that offences committed prior to 1 October 2003 must be heard and determined under the repealed provisions.  He submitted before the Crown could prove an offence under s 222 it was necessary for the evidence to establish misappropriation of the money before that date.

[18]     The Crown’s written submission focused on the content of the indictment.  Those written submissions stressed that all that is required of an indictment is to inform an accused person of the crime they are alleged to have committed.

[19]     Mr Thomas accepted that the conviction could not stand in its present form.  However, he submitted that if the indictment was amended to allege theft in similar terms to that contained in the example within the statutory form, it would cover the offending in this case.

[20]     While accepting the wording in the indictment related to elements of the post amendment offence that are required to be proved, he submitted those elements were not necessary if the Crown was relying on a charge of theft under the pre amendment provisions.  He submitted the question was one of identifying what prejudice there was to the appellant in this regard and submitted that the indictment, containing as it did separate section references, contained more detail, than was necessary.  He submitted that if the indictment contained detail, which did not constitute an element of the offence, this would amount to particulars, which are not required to be proved.  He submitted that failure to prove the particulars is not the same as a failure to prove the count in the indictment, provided there is proof of facts and conduct which in law satisfies the definition of the offence:  R v Mead [2002] 1 NZLR 594 (CA).

[21]     Finally, he submitted that proof of the details in this case not only amounted to proof of the necessary elements of s 220(1)(b) as it was amended from 1 October 2003, but also satisfied the elements of theft as they existed prior to the amendment.  In those circumstances the Crown submitted that there was no prejudice to the appellant and she was properly convicted. 

Discussion

[22]     The criminal law of New Zealand is contained in statutes.  A person is required to be convicted of an offence contained within a statute. 

[23]     Mr Andersen responsibly accepted that, but for the effect of the amendments, all the necessary elements were present to establish the offence under s 220(1)(b).  He also accepted that the necessary elements were present to establish an offence under the repealed s 222.  It must also be accepted that the factual findings fall within the definition of “theft” in both the repealed and the new section.

[24]     Pursuant to s 19 of the Interpretation Act 1999 offences committed prior to 1 October 2003 must be heard and determined under the repealed provisions as those continue to apply.  This was confirmed by the Supreme Court in a leave application Zhang v R Supreme Court SC CRI 15/2004 3 February 2005, where the Court stated at [4]:

[4]The second proposed issue arises from the fact that the statutory provision under which the prosecution was brought had been repealed at the point when the indictment was amended to rely on that provision.  (The amendment was a consequence of the judgment of the Court of Appeal in R v Armstrong [2004] 1 NZLR 442.) The provision was in force at the time of the alleged offending. The contention is that the charges could not be brought or the indictment amended after the repeal. But s 19(2(b) of the Interpretation Act 1999 provides a complete answer. The repealed provision continues to have effect as if it had not been repealed for the purpose of commencing or completing proceedings for the offence. That provision is comprehensive in a temporal sense.

[25]     It is also well established that in substantive criminal law the law should not take effect retrospectively unless the statute clearly provides otherwise: R v King (No. 2)  (1995) 13 CRNZ 289.  That principle finds expression in s 26(1)b of the New Zealand Bill of Rights Act 1990.

[26]     While it is clear the date of an offence is not normally an essential element of a crime the situation is different here.  Section 220 replaced s 222 (theft by person required to account), s 223 (theft by person holding power of attorney), and s 224 (theft by misappropriating proceeds held under direction).  All of those offences are brought under the one umbrella of s 220.  But there is another significant change.  The repealed sections all required proof of dishonesty.  The new section does not.  As the learned authors of Garrow & Turkington Criminal Law in New Zealand note at CRI220.3:

There is no requirement that the person act dishonestly, in that the previous s 222 required a fraudulent conversion to the defendant’s own use or fraudulent omission to pay all or any part of the proceeds.  The issue now is squarely one of knowledge of the requirements of another entitled to the property.  …

[27]     While the penalty remains the same, the essential elements have changed.  It is no longer necessary to prove the dishonesty element, and the new section must be seen as creating a new and discrete offence from that which existed under s 222.  Furthermore, it is clear from the judgment appealed from, and the indictment, that the appellant was convicted under s 220. 

[28]     Given that that offence did not exist until 1 October 2003 and an essential element of it is the misappropriation of the money, we are satisfied that, due to the Judge’s finding that that date cannot be established beyond reasonable doubt, the Crown have failed to establish the misappropriation of the funds during the relevant period since the section came into effect.

[29]     As a corollary of that, exactly the same must apply to an offence under s 222. 

[30]     If the Crown case was one of truly alternative counts, notwithstanding the indictment, under New Zealand law the Crown must prove one alternative to the exclusion of the other. 

[31]     In Gilson v R (1991) 172 CLR 353 the High Court of Australia stated that where a jury is sure that one of two alternatives is proved beyond reasonable doubt, but cannot say which one, it should be directed to convict on the lesser offence. We do not consider that to be the law of New Zealand.

[32]     The Privy Council in Attorney-General of Hong Kong v Yip Kai-foon [1988] AC 642 Ackner LJ, in delivering the decision of the Court, stated at 656:

In their Lordships’ opinion the trial judge, but for the injection into his summing up of the passage quoted above from Chan Tat v R [1973] HKLR 114 at 119, directed the jury quite properly as to the way in which they should approach a count of robbery and the alternative offence of handling. The jury were required to approach the matter by two stages. First, they had to ask themselves whether they were satisfied beyond reasonable doubt that the respondent was guilty of robbery. This would involve rejecting the respondent’s evidence and then being satisfied, so that they felt sure, that the ballistic evidence linked the respondent with the robberies or either of them. If they were not so satisfied, they would then proceed to the second stage, and ask themselves whether the prosecution had satisfied them in relation to each of the ingredients of the alternative offences of handling, which the judge had spelt out with great clarity. Of course, if less than a majority were in favour of convictions of robbery and less than a majority in favour of convictions of handling, then the judge would have to discharge the jury and order a new trial. This case gave rise to no special difficulty or complication.

[33]     There is therefore a requirement to acquit on both charges unless one or the other can be proved beyond reasonable doubt. 

[34]     The Gilson approach has been specifically rejected in offences under s 6 of the Misuse of Drugs Act by this Court and the Privy Council:  R v Karpavicius [2001] 3 NZLR 41 (CA), [2004] 1 NZLR 145.

[35]     It follows that the Crown cannot prove an offence against either s 220 or s 222. 

[36]     As already noted, [18], the Crown concedes that it cannot support the conviction in its present form.  Various alternatives were suggested by Mr Thomas, including amending the count to one of theft or exercising the discretion under s 385. 

[37]     There appears to have been some discussion in the District Court about possible amendment.  We do not have the full information before us.  Nor did the Crown make formal application in this appeal to amend the indictment.  It was suggested as a possible answer to the conundrum created by the amendment of the sections.

[38]     However, central to Mr Thomas’s submission was that the definition of “theft” in the repealed section is the same as in the new section.  In the context of this appeal, without full argument, we do not consider it appropriate to determine such a submission. 

[39]     In those circumstances it is also inappropriate to consider the application of the proviso.

[40]     While there is no merit in the appellant’s position, we are driven to the conclusion on the unusual facts of this case that the conviction must be quashed.  It follows the reparation order must also be set aside.  We see no reason not to follow the usual consequential course of ordering a new trial.  It is possible the Crown will garner further evidence to resolve the problem or that there is a true alternative charge that would fit the criminality that was proved from the Judge’s factual findings.  The complainant should not have be left to his remedies before a Disputes Tribunal.

Solicitors:

Home Transfer Centre, Dunedin for Appellant
Crown Law Office, Wellington