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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA603/2012 [2012] NZCA 610 |
| BETWEEN OWEN FRANCIS TALLENTIRE |
| AND THE QUEEN |
| CA623/2012 |
| AND BETWEEN WAYNE LESLIE DOUGLAS |
| AND THE QUEEN |
| CA624/2012 |
| AND BETWEEN NEAL MEDHURST NICHOLLS |
| AND THE QUEEN |
| Hearing: 7-8 November 2012 |
| Court: Arnold, Harrison and Stevens JJ |
| Counsel: N S Gedye for Appellant Tallentire |
| 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…
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- AGLC
- Tallentire v R [2012] NZCA 610
- Case
- [2012] NZCA 610
- Decision Date
CaseChat Overview and Summary
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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