The Queen v Simcock - [2004] NZCA 92

JUDGMENT WITH AMENDMENTS AS RECORDED IN RECALL JUDGMENT DELIVERED ON 10 JUNE 2004 BUT OTHERWISE AS RELEASED ON 19 MAY
IN THE COURT OF APPEAL OF NEW ZEALAND
CA322/03
THE QUEEN
v
DONALD HUGH SIMCOCK
Hearing:25 February 2004

Coram:Anderson P
Glazebrook J
William Young J
Appearances: J R Billington QC for Appellant

J R F Fardell QC for Crown

Judgment:19 May 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction
[1]       The appellant stood trial in the District Court at Auckland on five counts laid under s229A of the Crimes Act 1961 alleging the use of documents with intent to defraud. He elected to be tried by a Judge alone. The trial Judge (Judge Nicola Mathers) convicted the appellant of three counts (counts 1, 2 and 3 in the indictment) and acquitted him on the other two counts. She subsequently sentenced him to community service.
[2]       The appellant appeals against conviction and the Solicitor-General seeks leave to appeal against sentence.
[3]       This judgment addresses only the challenge by the appellant to his convictions on counts 1, 2 and 3.
Background facts
The appellant
[4]       The appellant is, by training, a solicitor. As well as a Bachelor of Laws degree from the University of Auckland, he has two postgraduate degrees in law, a Masters degree from Victoria University of Wellington and a doctorate from Harvard University.
[5]       He has worked for the Inland Revenue Department where he was head of the Legal Division. Between 1981 and 1991 he was a partner in the national law firm, Bell Gully.
[6]       He left that firm in 1991 to pursue various business interests.
The business entities primarily relevant to the case
[7]       In the early 1990s the appellant was associated with New Zealand Enterprise Board Ltd (“NZEB”). This company was set up to promote investment opportunities. The share capital of NZEB was held through New Zealand Enterprise Nominees Ltd (“NZENL”) on behalf of Mr Simcock and others, including a Mr Stephen Reidy who was to die before the appellant’s trial. Also involved in the affairs of NZEB was the late Mr Graham Perkins (also to die before the appellant’s trial) who was the company secretary but not, as we understand it, a shareholder. The appellant was the executive chairman of NZEB.
[8]       A subsidiary of NZEB, New Zealand Trade and Investment Corporation Ltd (“NZTICL”), managed what were known as New Zealand Development Trusts. One of these Trusts was the Flat Rock Forest Trust (“Flat Rock”). This was a unit trust formed in 1989 to acquire pine forestry holdings.   A public offering of units in this trust was made by prospectus issued in March 1993.
[9]       The trustee of Flat Rock was AMP Perpetual Trustee Company NZ Ltd (“AMP”). The AMP officer primarily involved in the administration of Flat Rock was Mr Michael Goodchild.
[10]     New Zealand Forests Ltd (“NZFL”) was a subsidiary of NZEB and was used to enter into agreement to acquire assets, title to which was later taken by Flat…

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 The Queen v Simcock

Details

AGLC: The Queen v Simcock [2004] NZCA 92
Case: [2004] NZCA 92
Decision Date: 19 May 2004

CaseChat Overview and Summary

In The Queen v Simcock, the Court of Appeal of New Zealand considered the appellant's appeal against his convictions on three counts of using documents with intent to defraud, under section 229A of the Crimes Act 1961. The appellant, a solicitor, had been involved in the acquisition of forestry assets for Flat Rock, a unit trust, through a series of complex transactions. The Crown alleged that the appellant had structured these transactions to generate secret profits for himself and others, in breach of his fiduciary duties as the manager of Flat Rock. The Court of Appeal upheld the trial Judge's findings that the appellant had indeed acted with intent to defraud and had dishonestly breached his legal duties.

The Court of Appeal rejected the appellant's arguments that the Judge had misidentified his legal obligations, that the findings of fact as to non-disclosure and absence of honest belief were wrong, and that it was not open to the Judge to conclude that he had acted fraudulently. The Court found that the appellant, as the manager of Flat Rock, had breached his fiduciary duties by structuring the transactions to generate secret profits for himself, in violation of his obligations to act in the best interests of the unit holders. The Court also held that the appellant's non-disclosure of the most relevant aspects of the transactions, including the payment of $150,000 to his company, was dishonest, and that his actions amounted to fraud. The appeal against conviction was dismissed, and the Solicitor-General's appeal against sentence was to be re-listed for argument.

Orders