CLEARKIN v DOVELL [2023] NZHC 2438

CLEARKIN v DOVELL [2023] NZHC 2438 [31 August 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-0063[2023] NZHC 2438BETWEEN BRIAN NEAL CLEARKINAppellantAND PERRY JAMES DOVELLRespondentHearing: 7 June 2023Appearances: Appellant in personJ E Tarrant for RespondentJudgment: 31 August 2023JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 31 August 2023 at 5 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Counsel: J E Tarrant, HamiltonCopy to: Mr B N ClearkinIntroduction[1] In circumstances described below, the respondent, Mr Dovell, was chargedwith theft by a person in a special relationship and an alternative charge of criminalbreach of trust.1 The charges were laid and prosecuted by the appellant, Mr Clearkin.His doing so followed a decision by the Police that there was insufficient evidence towarrant prosecution.[2] Mr Dovell pleaded not guilty to the charges and the matter proceeded to adefended hearing before Judge T R Ingram in the District Court at Thames on23 August 2022. The Judge heard evidence from a Ms Frances Southorn for theprosecution and from Mr Dovell. Mr Dovell was represented at trial by Ms Beveridge(who was not assigned counsel on appeal).[3] After the evidence had concluded, the Judge delivered an oral decision.2 In hisdecision, the Judge recorded that, having heard the evidence, he had advisedMr Dovell that he thought the elements of the "special relationship" charge had beenmade out; that Mr Dovell had then entered a plea of guilty to that charge; and that theJudge had then dismissed the alternative charge. The Judge then considered whetherhe would discharge Mr Dovell without conviction, pursuant to s 106 of the SentencingAct 2002, ultimately deciding to do so.[4] Mr Clearkin seeks to appeal to this Court against the Judge's decision.Procedural matters[5] Unfortunately, the procedural course of this appeal has not been in accordancewith the requirements of the Criminal Procedure Act 2011 ("CPA").[6] Section 296 CPA governs the circumstances in which a prosecutor may appealagainst an acquittal, which includes a discharge without conviction. It provides:296 Right of appeal(1) This section applies if a person has been charged with an offence.1 Crimes Act 1961, ss 220 and 229.2 Clearkin v Dovell [2022] NZDC 16118.(2) The prosecutor or the defendant may, with the leave of the first appealcourt, appeal under this subpart to that court on a question of lawagainst a ruling by the trial court.(3) The question of law in a first appeal under this subpart must arise—(a) in proceedings that relate to or follow the determination of thecharge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).(4) The question of law must not be one that—(a) arises from a jury verdict; or(b) arose before the trial and has already been decided undersubpart 2.[7] The effect of s 296(2) is that leave to appeal must be obtained, and leave mayonly be granted on a question of law against a ruling by the trial court. In addition,the question of law must arise either in proceedings that relate to or follow thedetermination of the charge, or in the determination of the charge (see s 296(3)).3Subject to any extension of time, the application for leave is to be made within20 working days of the decision appealed against (s 298 CPA).[8] Mr Clearkin did not file an application for leave to appeal under s 298 CPA buta notice of appeal against sentence under s 248 CPA. This was the incorrect provisionand, moreover, required Mr Clearkin to obtain the consent of the Solicitor-General.Having been approached, Crown Law advised Mr Clearkin that he needed to proceedunder s 296 CPA. Mr Clearkin did not, however, file an application for leave to appeal,let alone one stating the required question of law. Nor did Mr Clearkin seek, and norhas he sought, an extension of time in which to seek leave.[9] On 30 May 2023, I issued a minute notifying the parties that any appeal wouldneed to be confined to questions of law. At the hearing of the appeal, Mr Clearkinpresented a memorandum identifying his proposed questions of law as follows:(a) Did Judge Ingram consider all relevant evidence?3 R v Smyth [2017] NZCA 530.(b) Did Mr Dovell commit perjury at the hearing?(c) Did Judge Ingram wrongly conclude that Mr Dovell was unaware ofhis responsibilities regarding funds that were not his own?Question of law[10] The following constitute questions of law in this context:4(a) A misdirection of law.(b) Failing to take into account a relevant consideration or taking intoaccount an irrelevant consideration.(c) Making a factual finding that is unsupported by any evidence or failingto draw an inference of fact which is the only one reasonably possibleon the evidence — often referred to as "plainly wrong".[11] I will proceed on the basis that the first of Mr Clearkin's questions constitutesa question of law arising in the required manner. I grant the necessary extension oftime and leave to appeal on that first question. The other two matters are outside s 296CPA and thus I do not have jurisdiction to extend time or to grant leave.Background[12] In 2016, Ms Southorn and Mr Dovell, good friends at the time and with acommon interest in animal welfare, decided that they would establish a charitable trustfor purposes of fostering such welfare. They also recruited two other trustees to thecause.[13] As I understand the evidence, Mr Dovell approached a trading bank to open anaccount for the trust. The bank declined to do so until it had sight of an executed trustdeed.4 R v Malu [2017] NZCA 546 at [10].[14] Given that, and pending satisfaction of the bank's requirements, Mr Dovellopened an account with an "02" suffix ("02 account") under his business account.[15] This meant Mr Dovell had two sub-accounts. The first was for his businessand the second was the 02 account, for the trust.[16] Trust funds, or at least funds intended for the trust, were paid into the02 account. Mr Dovell was the sole party authorised to transact on the 02 account.[17] In the course of 2017, Mr Dovell, in straitened circumstances, transferred somefunds from the 02 account to his business account to cover various outgoings. TheJudge accepted that Mr Dovell believed he had consent from Ms Southorn to his doingso, something Ms Southorn categorically denied at trial.[18] Ms Southorn and Mr Dovell then had a serious disagreement relating to ananimal welfare issue, and fell out with one another.[19] In about late-2017, the proposed trust was formally settled, registered as acharitable trust, and it also opened its own bank account with Westpac. I shall refer tothis as the "frozen account".5[20] Mr Dovell subsequently repaid the funds he had transferred, with interest. Asappears below, there is a dispute as to the account to which Mr Dovell repaid the funds:the 02 account or the frozen account.Section 220 Crimes Act 1961[21] Section 220 of the Crimes Act 1961 provides:220 Theft by person in special relationship(1) This section applies to any person who has received or is in possessionof, or has control over, any property on terms or in circumstances thatthe person knows require the person—5 The bank subsequently froze the funds in the account, either when the parties fell out or when thecharity was "deregistered" as a charitable trust.(a) to account to any other person for the property, or for anyproceeds arising from the property; or(b) to deal with the property, or any proceeds arising from theproperty, in accordance with the requirements of any otherperson.(2) Every one to whom subsection (1) applies commits theft whointentionally fails to account to the other person as so required orintentionally deals with the property, or any proceeds of the property,otherwise than in accordance with those requirements.(3) This section applies whether or not the person was required to deliverover the identical property received or in the person's possession orcontrol.(4) For the purposes of subsection (1), it is a question of law whether thecircumstances required any person to account or to act in accordancewith any requirements.Judge's decision[22] In the first part of his judgment, the Judge outlined the evidence that had beengiven. He referred particularly to the difference between Mr Dovell and Ms Southorn,that is Mr Dovell believing Ms Southorn had approved or allowed him to transfer themoney from the 02 account (always on the basis he was to pay the money back) andMs Southorn's point blank denial that she had ever given any such approval.[23] The Judge then said that he was satisfied the elements of the charge under s 220had been established but that the situation had arisen from Mr Dovell's ignorance ofhis obligations both as a trustee, and as treasurer holding money for the "yet to beformed" trust.6[24] The Judge then said:[6] In the circumstances, I am completely satisfied that [Mr Dovell]believed that he was entitled to take the money in the circumstances that I haveoutlined as long as he repaid it and he has repaid it together with a sum ofinterest on that money.6 Mr Clearkin submits that Mr Dovell could not have been in ignorance of his obligations given hisprior experience in a local branch of the SPCA. However, the Judge's conclusion was thatMr Dovell was in ignorance of his obligations is a finding of fact which is not open to be appealed.[25] The Judge then repeated that he was satisfied that all of the elements of thes 220 offence were established, and that, at the conclusion of the evidence: 7[9] ... Mr Dovell was inclined to accept that the elements of the chargehad been made out. He entered a guilty plea to the charge of theft by a personin a special relationship ...[26] I note that the Judge's reference to Mr Dovell being "inclined" to accept theelements were made out suggests to me that there may have been a discussion betweenthe Judge and the parties (including Ms Beveridge) after the evidence and before theJudge delivered his decision. Also, Mr Dovell must have entered his plea in theintervening period.[27] The Judge's decision then turns to the question of penalty, the Judge ultimatelyexpressing himself satisfied it was appropriate to discharge Mr Dovell withoutconviction. Given the issue on appeal, it is unnecessary for me to address the Judge'sprecise reasons.Submissions on appeal[28] Mr Clearkin submits that Mr Dovell's evidence was that he had paid all fundsto the frozen (trust) account but he had not done so. Mr Clearkin referred me to thoseparts of the transcript where Mr Dovell is said to say, and repeat, that all funds weredeposited to the frozen account.[29] Mr Clearkin submits that his cross-examination of Mr Dovell revealed thatMr Dovell had lied to the Court about this. Mr Clearkin submits that this was arelevant consideration, but the Judge failed to recognise it and to take it into accountin reaching his decision. Mr Clearkin submits that I should allow the appeal, quashthe discharge, and enter a conviction against Mr Dovell under s 220.[30] Counsel for Mr Dovell on appeal, Ms Tarrant, submits that I should dismissthis appeal because Mr Clearkin has not sufficiently identified where the Judge erredin his decision.7 Clearkin v Dovell, above n 2.Discussion[31] It is unclear to me from the transcript whether Mr Dovell's evidence was thathe restored the monies to the 02 account or to the frozen account. With respect toMr Clearkin, who has been who has been intimately involved in the matter, I do notconsider the evidence on this point is as clear as he does or that, if there was an errorby Mr Dovell, it was not a simple mistake. Both witnesses acknowledged makingmistakes in some of their oral evidence and going back to correct the position. This isnot an unusual occurrence in a trial and certainly not sufficient for any allegation ofthe serious matter of perjury.[32] In my view, the account to which Mr Dovell paid the funds does notparticularly matter. What matters is that Mr Dovell had repaid or restored the fundsthat he had earlier transferred, together with interest, plainly with the intention thatthey would be available to be applied solely for their intended purpose.[33] The Judge's focus, quite correctly in my view, was on the fact of the return orrestoration of the funds, not where they were presently held. It is obvious that theoutcome would have been different if the Judge had any hint that Mr Dovell intendedto keep accessing the funds for personal use.[34] It follows that I am not persuaded the Judge overlooked any consideration thatwas relevant to the decision he was required to make, and I propose to dismiss theappeal.[35] There is one other point to address. I have already referred to Mr Clearkin'swish that, had he succeeded on appeal, I set aside the discharge without convictionand enter a conviction against Mr Dovell. I would not have entered a convictionagainst Mr Dovell. Quite aside from anything else, as I said earlier, there appears tohave been a discussion between the Judge and those involved in the trial after theevidence was concluded but before the Judge gave his decision. That discussion mighthave a bearing on the appropriate course. At most, I would have quashed the dischargewithout conviction and referred the matter back to the District Court.Result[36] I dismiss this appeal.Peters J