Counsel: N S Gedye for Appellant Tallentire
B D Gray QC and R J Sussock for Appellants Douglas and Nicholls
N R Davidson QC, N R Williams and M K Thomas for Respondent

Judgment: 20 December 2012 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction [1]
Background facts [4]

The Numeria 1 transaction  [9]
The Clyde transactions  [22]
Numeria 2  [41]

High Court reasons for verdict [49]

The elements of the offence  [51]
Previous s 220 cases  [52]
Intention  [53]
No concealment  [55]

The central issue – intention [57]

The correct test for intention  [58]
Appellants’ submissions  [66]
Respondent’s submissions  [76]

Intention – our analysis [80]

Numeria 1  [83]
Numeria 1 – our analysis  [94]
Clyde 1  [104]
Clyde 1 – our analysis  [110]
Clyde 2  [120]
Clyde 2 – our analysis  [124]
Numeria 2  [131]
Conclusion on conviction appeals  [137]

Sentence appeal [138]

Judge’s approach [139]

Submissions on sentence [152]

Messrs Douglas and Nicholls  [152]
Mr Tallentire  [162]
Respondent’s submissions  [169]
Our evaluation  [178]

Result [189]

Introduction

These three appeals concern prosecutions arising out of the affairs of the collapsed finance company Capital + Merchant Finance Ltd. Following a trial before Wylie J in the High Court, Messrs Douglas and Nicholls were convicted of three charges of theft by a person in a special relationship contrary to s 220 of the Crimes Act 1961.[1] Each was sentenced to seven and a half years’ imprisonment.[2] Mr Tallentire was convicted of two charges of theft by a person in a special relationship and sentenced to five years’ imprisonment. All three appellants appeal against both conviction and sentence. On the conviction appeals, the arguments raised by each appellant are the same.
[1]R v Douglas [2012] NZHC 1746 [Reasons for verdict].
[2]R v Douglas [2012] NZHC 2271 [Sentencing decision].
The appellants were directors of Capital + Merchant Finance Ltd.[3] That company was placed into liquidation on 15 December 2009. The convictions under appeal relate to the appellants’ conduct in four transactions involving funds held by Capital + Merchant Finance Ltd. The essence of each charge was that the appellants, knowing they had to deal with investor’s funds in accordance with the provisions of the Capital + Merchant Finance Ltd debenture trust deed, intentionally departed from those obligations.
[3]Mr Douglas was a director of the company from 18 January 2002 until 15 February 2007. Mr Nicholls was a director from 18 January 2002 until 1 November 2005. He was reappointed as a director on 31 March…

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 Tallentire v R

Details

AGLC: Tallentire v R [2012] NZCA 610
Case: [2012] NZCA 610
Decision Date: 20 December 2012

CaseChat Overview and Summary

The appeals against conviction and sentence of Messrs Owen Francis Tallentire, Wayne Leslie Douglas and Neal Medhurst Nicholls were dismissed by the Court of Appeal of New Zealand. The appellants were directors of Capital + Merchant Finance Ltd, which was placed into liquidation on 15 December 2009. The convictions under appeal related to the appellants' conduct in four transactions involving funds held by Capital + Merchant Finance Ltd. The essence of each charge was that the appellants, knowing they had to deal with investor’s funds in accordance with the provisions of the Capital + Merchant Finance Ltd debenture trust deed, intentionally departed from those obligations. The primary issue on the appeals against conviction concerned the correctness of the trial Judge’s interpretation and application of the intention element required for theft under s 220. The appeals against sentence were advanced on the ground that the sentences were manifestly excessive. The Court concluded that Wylie J had not erred in his application of any aspect of the mental elements applicable to charges under s 220. The Court found that Wylie J had correctly applied the relevant test to the facts of the four transactions. The prosecution had proved beyond reasonable doubt in each case that the accused intentionally dealt with the property concerned otherwise than in accordance with the requirements of the debenture trust deed. In the case of the Numeria 2 transaction the defence had raised a reasonable doubt on this element. Wylie J properly acquitted Messrs Nicholls and Tallentire on this charge. The Court found that Wylie J's assessment of culpability was correct, and the starting points were appropriate. The Court considered that Wylie J was correct to take account of the impact of this offending on commerce and the finance industry more generally. The Court concluded that the sentences imposed by Wylie J were not manifestly excessive.

Orders