Nicholls v R

For a Court ready (fee required) version please follow this link

NOTE
Nicholls v R [on application from Tallentire v R]
Supreme Court of New Zealand SC10/2013; SC11/2013; [2013] NZSC 39
19 April 2013
Chambers and Glazebrook JJ

Criminal law – Theft – By person in special relationship – Elements of crime –

Intention to enter into transactions – Intention to do so in breach of relevant obligations – Whether necessary to prove intention or concealment – Crimes Act 1961, s 220.
[1] Neal Nicholls and Wayne Douglas, as directors of Capital + Merchant
Finance Ltd, were found guilty of three charges under s 220 of the Crimes Act
1961 of theft by a person in a special relationship. They were tried by Wylie J sitting without a jury.1 The Court of Appeal dismissed their appeal against conviction and sentence.2
[2] Messrs Nicholls and Douglas now seek leave to appeal on the basis of what they say was an error in the Crown’s approach at trial with respect to mens
rea under s 220. They assert that leave should be granted because guidance from this Court is required “for future proceedings to correct the approach taken by the Crown at the trial”. We do not accept the premise upon which this submission is based. What we do know is that counsel agreed at trial on what the elements of a s 220 offence are. Wylie J recorded that agreement in the
following terms:3
Prior to counsel making their closing submissions, I circulated a draft setting out what I considered to be the elements of the offence created by the section, and invited counsel to comment on the same. They did so, and it was agreed that the elements of the offence are as follows:
(a) Did the accused have control over property?
(b) Was the property in the control of the accused, in circumstances
that required him to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person?
(c) Did the accused know of those circumstances? And,
(d) Did the accused intentionally deal with the property, or any
proceeds of the property, otherwise than in accordance with those requirements?
[3] Elements (c) and (d) are the two so-called mens rea requirements. The
applicants in their submissions paraphrase these elements. They correctly

1 R v Douglas [2012] NZHC 1746.
2 Tallentire v R [2012] NZCA 610, [2013] 1 NZLR 548.
3 At [149].

paraphrase element (c) but do not accurately paraphrase element (d). They then go on to explain why element (d) is incorrect – but it is the paraphrase which is in error. The whole argument advanced by the applicants is built on that false initial premise. The High Court’s approach, with which the Court of Appeal

agreed and we agree, was endorsed by the Crown at trial, as Wylie J recorded, 5 and remains the Crown’s position now.

...

We dismiss the applications for leave. The test applied by Wylie J and the Court of Appeal was agreed and even now is not in truth challenged. Rather

what is put up is the strawman of an alleged Crown approach at trial. 10

Mr Davidson QC disputes that it was the Crown approach at trial, but in any

event it was not the approach adopted by Wylie J or the Court of Appeal. When properly analysed, there is no question of general or public importance. Nor are we satisfied that a substantial miscarriage of justice will occur if the proposed

appeal is not heard. 15

Application dismissed.

CaseChat Overview and Summary

The case of Nicholls v R concerns the appeal by Neal Nicholls and Wayne Douglas, directors of Capital + Merchant Finance Ltd, against their conviction and sentence for theft by a person in a special relationship under s 220 of the Crimes Act 1961. Their initial appeal against conviction and sentence was dismissed by the Court of Appeal, and they now seek leave to appeal to the Supreme Court, arguing there was an error in the Crown's approach to mens rea at trial. The Supreme Court was tasked with determining whether the applicants' arguments had merit and whether there was a need for further clarification on the elements of the offence.

The primary legal issue before the court was whether the applicants' arguments about the Crown's approach to mens rea at trial were valid and whether there was indeed an error that required the Supreme Court's intervention. The applicants argued that the Crown's approach at trial was incorrect and that this necessitated the Supreme Court's guidance for future proceedings. The court had to examine the submissions made by the applicants and determine if there was a misunderstanding or misstatement of the elements of the offence as agreed upon at trial.

The Supreme Court found that the applicants had misstated the elements of the offence as agreed upon at trial, leading to a flawed basis for their appeal. The court noted that the agreed elements of the offence, as recorded by Wylie J, were correctly applied by both Wylie J and the Court of Appeal. The applicants' argument was based on a mischaracterisation of the Crown's approach at trial, and thus the court concluded that there was no error warranting further clarification. The Supreme Court dismissed the applications for leave to appeal, holding that there was no question of general or public importance and no substantial miscarriage of justice if the appeal was not heard.

The Supreme Court's final orders were to dismiss the applications for leave to appeal, affirming that the test applied by Wylie J and the Court of Appeal was correct and that there was no basis for the Supreme Court's intervention. The court found that the applicants' arguments were based on a mischaracterisation of the trial proceedings and did not present a valid basis for appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established