The Queen v Watt - [2006] NZCA 293

IN THE COURT OF APPEAL OF NEW ZEALAND
CA131/06
THE QUEEN
v
DAVID JAMES THOMAS WATT
Hearing:6 September 2006

Court:Glazebrook, Ellen France and Ronald Young JJ
Counsel:P Gorringe for Appellant

M R Heron and A M McClintock for Crown

Judgment:17 October 2006 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

PARA NO.

Introduction  [1]
Issues  [5]
Factual background  [7]
THE APPEAL  [34]
FINDING THAT THE APPELLANT ACTED DISHONESTLY  [35]
FINDING THAT PROSPECT OF NEGLIGENCE CLAIM WAS AN ARTIFICE  [63]
OTHER MATTERS  [72]
SENTENCE  [86]
RESULT  [91]
Introduction
[1]       The appellant was convicted after a trial before a Judge alone of one charge of criminal breach of trust.
[2]       The conviction arose from the appellant’s actions as trustee and executor of the estate of Mr Leonard Hoare. Essentially, the appellant billed the estate and paid himself out of estate funds in circumstances where the Judge found he knew he was not entitled to be paid.
[3]       The appellant was sentenced on 12 April 2006 by the trial Judge, Judge Roderick Joyce QC, to a term of 15 months imprisonment. Leave to apply for home detention was granted but the Judge declined to defer the start date of the sentence. A sum of $60,000 was to be paid by the appellant to the current trustee of the estate.
[4]       The appellant appeals against his conviction. He also argues that, if the Court considers his culpability is less than that identified by Judge Joyce QC, there should be a commensurate reduction in sentence.
Issues
[5]       The appellant’s case is essentially that the verdict is unreasonable or cannot be supported having regard to the evidence. It is said that the Judge failed to consider relevant evidence or mistook its meaning or did not give proper effect to it. Further, as the appellant gave and called evidence, in a number of situations there were two reasonable inferences available but the Judge favoured the Crown.
[6]       There is no challenge to the law applied by Judge Joyce QC. The issue then, applying the test in R v Ramage [1985] 1 NZLR 392 (CA), is whether this Court is of the opinion that a Judge, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused.
Factual background
[7]       The factual background is quite complicated and is discussed in detail in the Judge’s reasons for verdict. The essential features are as follows.
[8]       At the relevant times, the appellant was in legal practice on his own account.
[9]       In June 1994, Mr Leonard Hoare died. He left a will that he had made on 4 February 1988. The appellant, at that time a partner in a law firm, was the solicitor instructed to draft the will although he in fact instructed another solicitor in another firm to do the drafting.
[10]     Mr Hoare’s widow, Valda Hoare, was appointed executrix under the will. The appellant…

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 Watt

Details

AGLC: The Queen v Watt [2006] NZCA 293
Case: [2006] NZCA 293
Decision Date: 17 October 2006

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to consider an appeal against conviction and sentence in the case of The Queen v David James Thomas Watt. The appellant was convicted of criminal breach of trust in his capacity as trustee and executor of the estate of Mr Leonard Hoare, having billed the estate and paid himself out of estate funds when he knew he was not entitled to be paid. The appellant was sentenced to 15 months imprisonment and ordered to pay $60,000 to the current trustee of the estate. The appeal was against the conviction and argued that if the Court considered his culpability to be less than that identified by the trial Judge, there should be a commensurate reduction in sentence.

The Court considered the appeal against conviction, focusing on the findings that the appellant acted dishonestly and that the prospect of a negligence claim was an artifice created by the appellant. The Court found that the Judge was entitled to conclude that the appellant knew he was not entitled to pay himself and acted dishonestly, and that the prospect of a negligence claim was an artifice. The Court also considered other findings made by the Judge and found that they were open to the Judge based on the evidence presented.

Regarding the sentence, the appellant accepted that the sentence imposed was within range but submitted that if the Court upheld the conviction on the basis of a lesser culpability, the sentence should be reviewed. The Court found that it was open to the Judge to find as he did in calculating an appropriate fee and that no more was required in determining the appropriate term of imprisonment. Therefore, the appeal against conviction and sentence was dismissed.

Orders