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NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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…

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 Sizemore v The Queen

Details

AGLC: Sizemore v The Queen [2005] NZCA 298
Case: [2005] NZCA 298
Decision Date: 5 December 2005

CaseChat Overview and Summary

The case of Sizemore v The Queen involves Shirley Marilyn Sizemore, who was convicted in the Dunedin District Court of theft under the Crimes Act 1961. The conviction was based on her alleged misappropriation of $2,000 entrusted to her by an 80-year-old resident of a rest home she managed. Sizemore appealed against her conviction, arguing that the District Court Judge erred in convicting her of an offence under the amended section 220 of the Crimes Act, which came into effect on 1 October 2003, when the exact date of the misappropriation could not be established beyond reasonable doubt.

The primary legal issue was whether the District Court Judge correctly convicted Sizemore under section 220 of the Crimes Act, given that the date of misappropriation could not be established beyond reasonable doubt. The court considered whether the amendment to the Crimes Act, which removed the requirement of dishonesty and altered the essential elements of the offence, affected the ability of the Crown to prove the offence. The court also examined whether the failure to prove the exact date of misappropriation resulted in a failure to prove the offence under either the repealed or amended sections.

The Court of Appeal determined that the conviction must be quashed because the Crown could not prove the offence under either the repealed section 222 or the amended section 220 of the Crimes Act. The court held that the date of misappropriation was an essential element of the offence under section 220, and since it could not be established beyond reasonable doubt, the Crown failed to prove the offence. The court also noted that the essential elements of the offence had changed with the amendment, creating a new and discrete offence, and that the Crown had to prove one alternative to the exclusion of the other. The Court of Appeal concluded that the conviction must be quashed, the reparation order set aside, and a new trial ordered.

The final orders of the court were to quash the conviction, set aside the reparation order, and order a new trial.

Orders