Wynyard v R - [2015] NZCA 610

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/2015
[2015] NZCA 610

BETWEEN	GLENDA MARY WYNYARD Appellant
AND	THE QUEEN Respondent

Hearing:	4 November 2015
Court:	Randerson, Lang and Clifford JJ
Counsel:	P J Davison QC, R S Reed and H D L Steele for Appellant D La Hood and E Jones for Respondent
Judgment:	17 December 2015 at 9.30 am

INTERIM JUDGMENT OF THE COURT

AThe appeal against conviction is allowed in respect of Counts 3 and Counts 5–10. The convictions in relation to those charges are set aside and the sentences imposed in respect of them are quashed.
BThe appeal against conviction in respect of Count 11 is dismissed.
CThe remaining aspects of the appeal against sentence will be determined following receipt of the submissions directed to be filed at [60].
DThe grant of bail by the Court on 4 November 2015 is extended on existing terms pending delivery of the final judgment of the Court.

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REASONS OF THE COURT

(Given by Lang J)

Ms Wynyard stood trial before Judge Gibson sitting without a jury on 13 charges laid under the Crimes Act 1961. All of the charges were laid following the collapse of a business operated by her company, The Media Counsel Limited (the company). The charges related to the manner in which Ms Wynyard had caused the company to conduct its business during the final months before it went into liquidation. For reasons given on 27 March 2015, Judge Gibson found Ms Wynyard guilty on 11 of these charges.[1] On 24 April 2015, the Judge sentenced Ms Wynyard to eight months home detention on the charges on which she was convicted.[2]
[1]R v Wynyard DC Auckland CRI 2013-004-6021, 27 March 2015 [Reasons for verdicts].
[2]R v Wynyard [2015] NZDC 7240 [Sentencing notes].
Ms Wynyard now appeals against conviction on eight of the charges on which she was convicted. The appeal relates to six charges of theft by a person in a special relationship, one charge of causing loss by deception and one charge of dishonestly using a document to obtain a pecuniary advantage. Ms Wynyard also appeals against sentence.

Background

Ms Wynyard was the sole director of the company, and another company that she controlled was its only shareholder. The company’s business was the placement of advertising with media organisations on behalf of corporate clients.
Media placement companies and agencies of this nature are able to obtain accreditation from the Print Media Accreditation Authority (PMAA). Accredited companies are able to place advertising with media organisations on terms that require payment on the last working day of the month following publication. Without accreditation, payment must be made at the time the advertising is placed.
When the company was incorporated in 2005, it did not have accreditation. As a result, it was required to pay for advertising immediately on placement. It would not obtain payment from its own clients until some time later. To deal with the cash flow issue created by the lack of…

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 Wynyard v R

Details

AGLC: Wynyard v R [2015] NZCA 610
Case: [2015] NZCA 610
Decision Date: 17 December 2015 at 9.30 am

CaseChat Overview and Summary

Ms Wynyard appealed against eight of the 11 charges on which she was convicted following the collapse of her media placement business. The Court allowed the appeal against conviction on six charges of theft by a person in a special relationship, one charge of causing loss by deception, and one charge of dishonestly using a document to obtain a pecuniary advantage. The appeal against conviction in respect of the remaining charge was dismissed. The sentences imposed on the charges on which the appeal against conviction was allowed are quashed. The Court extended the bail granted by the Court on 4 November 2015 on existing terms pending delivery of the final judgment of the Court.

The Court considered that Ms Wynyard’s conduct did not cause loss to the advertising agency Aegis by preventing it from contacting clients directly to ensure payment was made to it. The Court concluded that Aegis’ ability to gain access to payments made by clients in respect of invoices was irretrievably compromised by the securities Marac held over the company’s debts from the outset. The Court also considered that Ms Wynyard could not be criminally liable for actions that resulted in money being paid to Marac because Marac was the beneficial owner of the money paid by the company’s clients. Ms Wynyard could not be convicted of an offence under s 220 for ensuring that the company used payments from debtors to repay Marac rather than Aegis because she could not be criminally responsible for complying with the company’s legal obligation to account to the creditor who had the superior right to the funds. The Court concluded that Ms Wynyard acted dishonestly and without claim of right in using the cheque to pay Marac because she knew she did not have the consent of either AFT or Aegis to use the cheque in that way and she did not genuinely believe she had a legal right to do so.

Orders