Norris v The Queen

[2012] NZHC 2212

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-042-1272 [2012] NZHC 2212

IN THE MATTER OF     a charge laid pursuant to s 220 of the

Crimes Act 1961

BETWEEN  PATRICK DEAN NORRIS Applicant

ANDTHE QUEEN Respondent

Hearing:         29 August 2012 (AVL) (Heard at Wellington)

Counsel:         Applicant (In person) AJD Bamford (Amicus) G P Barkle for Respondent

Judgment:      29 August 2012

ORAL JUDGMENT OF MILLER J

[1]    Mr Norris is to be tried on Monday, 3 September before a Judge alone in the

District Court at Nelson on one charge of theft by a person in a special relationship.[1]

It is said that as liquidator of Astra Enterprises Limited he failed to account to creditors for property of the company or the proceeds thereof.

[1] Section 220, Crimes Act 1961.

[2]    This judgment responds to his application for transfer to this Court under s 28J

of the District Courts Act 1947.

[3]    The information was laid indictably on 11 April 2011, but the application for transfer was filed only yesterday.  As recently as 18 July both parties confirmed the trial date to the District Court, and on 15 August the Court allowed the Crown to file

an amended indictment and granted Mr Norris’s application for a Judge-alone trial.

NORRIS v R HC NEL CRI-2011-042-1272 [29 August 2012]

[4]    Mr Norris has moved for a discharge under s 347, and he has sought an order excluding evidence which he says was improperly obtained through an inspection under s 365 of the Companies Act 1993.  Those matters are to be dealt with at the commencement of the trial.

[5]    The Crown intends to call a number of witnesses, all of whom have made arrangements to be available at Nelson from 3 September.  One is travelling from overseas and four from other centres in New Zealand.   Were the application for transfer to be granted the trial must of course be vacated.

[6]    The test under s 28J is the interests of justice.

[7]    Mr Norris’s position rests on a number of points:   in summary, this Court enjoys a supervisory jurisdiction over liquidators under the Companies Act 1993, provisions  of  which  are  at  the  heart  of  the  case,  the  issue  matters  greatly  to liquidators generally, and the Companies Office investigators acted unlawfully when gathering evidence under powers in the 1993 Act.

[8]    But the criminal prosecution is within the jurisdiction of the District Court notwithstanding that Mr Norris’s role as liquidator supplies the factual context.  It cannot be regarded as an especially serious offence.  It is by no means apparent that the case raises issue of general principle for liquidators.  That depends on the facts. The Crown would have it that this was simple theft;  some $80,000 of money of the company in liquidation was transferred to Mr Norris’s accounts and used for his own benefit.  Of course, Mr Norris denies that.  I accept that a District Court Judge has recognised  that  the  matter  raises  issues  of  some  complexity  dealing  with  a liquidator’s rights and powers.  There is a question whether Mr Norris was obliged to account to creditors for purposes of s 220.   But it goes without saying that the District Court routinely deals with complex fraud and questions of law and admissibility of evidence.

[9]    Further, the interests of justice militate strongly in favour of not vacating the trial at this late stage, with the attendant disruption, delay and additional cost that would result.  That is especially so when the grounds relied upon for transfer must

have been obvious from the outset.  It is customary for applications of this kind to be brought at the time the proceedings are commenced.

[10]  The application is dismissed.

Miller J

Solicitors:

Bamford Law, Nelson for Applicant (Amicus)

Crown Solicitor’s Office, Nelson for Respondent