IN THE COURT OF APPEAL OF NEW ZEALAND
CA769/2013
[2014] NZCA 325
BETWEEN
RHYS MICHAEL CULLEN
Appellant
AND
THE QUEEN
Respondent
Hearing:
16 June 2014
Court:
White, Keane and MacKenzie JJ
Counsel:
S D Cassidy, P Broad and G A Harvey for Appellant
K Raftery for Respondent
Judgment:
14 July 2014 at 3.00 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Introduction
[1]
The appellant, Mr Cullen, appeals against his convictions following a second
jury trial in the Manukau District Court on 15 counts of receiving stolen motor
vehicles under s 246 of the Crimes Act 1961. Mr Cullen’s sentencing on these
convictions is awaiting the outcome of this appeal.
CULLEN v R CA769/2013 [2014] NZCA 325 [14 July 2014]
[2]
At his second trial Mr Cullen was charged with being a party to offending by
Tamaki Metals Ltd (TML), the lessee of the scrap metal yard in South Auckland
where the stolen motor vehicles were found by the police.
[3]
Mr Cullen appeals against his convictions on the grounds that the District
Court Judge, Judge McNaughton, was wrong to decide as a matter of law that
Mr Cullen was the only “directing mind” of TML and that he consequently
misdirected the jury on that issue as well as the issues of Mr Cullen’s “secondary
liability” and the point in time at which “recklessness” was to be assessed under
s 246 of the Crimes Act. It is contended that a miscarriage of justice arose as a result
of these errors.1
Background
[4]
There is no dispute that the evidence at the trial established that Mr Cullen
was the sole director and manager of TML, which held the necessary scrap metal
dealer’s licence for the operation of the yard under the Secondhand Dealers and
Pawnbrokers Act 2004 (the SDP Act). He was in fact named on the licence as the
only person involved in its management. The evidence also established that he was:
in control of TML’s only shareholder, Tamaki Rugby League Inc; at TML’s yard
almost every day running the business and the Tamaki Rugby League Academy from
buildings there; in control of TML’s accounts and purchases; in charge of TML’s
second hand dealer’s records and second hand licence lists, as required by s 42(1) of
the SDP Act; responsible for keeping stolen cars off the yard; and referred to by
employees as “boss” or “doc”.
[5]
There is also no dispute that the evidence at the trial established that, in
addition to Mr Cullen, there were three employees of TML, Messrs Leha, Rogers
and McPherson, who were authorised by certificates issued by TML under s 19(2) of
the SDP Act to purchase secondhand vehicles from members of the public and who
in fact did so using TML’s funds. These employees followed “a buyer’s guide”,
which Mr Cullen had prepared, dated 1 January 2009.
The guide principally
emphasised that the police had given an official warning that TML was not keeping
1
Crimes Act 1961, s 385(1)(b) and (c).
adequate records of its metal purchases and emphasised the proper customer
identification steps that should be followed and that if buyers thought a vehicle was
stolen, they should not buy it, and should make a report to the police.
[6]
The process of TML’s operation was that any vehicles purchased by TML
were delivered to the yard by the vendor, where they were typically purchased by
Messrs Leha, Rogers and McPherson with ready cash, while Mr Cullen was in his
office; moved around the yard by forklift; put up on a stand; drained of fluids; taken
inside for further dismantling; taken back outside; and crushed and sold for scrap
metal.
[7]
The evidence also established that Mr Cullen oversaw the work of the three
employees by writing their short term or daily tasks on a whiteboard located in the
yard lunchroom, by giving them instructions and by checking regularly on the work
they did.
[8]
Mr Cullen himself worked in an office at the yard with his accounting
assistant, Ms Wilcox. She was sent about once a fortnight to the post office to check
whether cars were stolen and sent immediately if there was any particular suspicion.
[9]
There is now no dispute that the 15 motor vehicles the subject of Mr Cullen’s
15 convictions were stolen motor vehicles. A number of the vehicles were brought
to the yard by men identified as Sean Johnson and Jared Bunce.
[10]
Mr Cullen admitted filling in the dealer records for the motor vehicles the
subject of counts 1, 2, 4, 5, 6, 7, 8 and 10.
[11]
dated.
Most of the records were not signed on behalf of TML. Many were not
The vehicle descriptions were minimal – sometimes make and model,
sometimes just “car”. There were seldom registration numbers, no VIN numbers,
and no identifying details of the seller. Many of the suspect records recorded the
customer number “527”, which was assigned to “Margot Gollotoa”. Mr Cullen
admitted he knew there was a problem with that customer number. That customer
number was recorded against 80 per cent of the cars purchased by the company as
scrap metal in May 2009 and 50 per cent of those bought in June 2009. There was
often a mismatch between the name assigned to “527” and the names on dealer’s
records which sometimes were “Shaun” or “Jared”.
[12]
For all the vehicles there was evidence of obvious warning signs that they
could be stolen: the high number of vehicles received by the yard in May and June
2009; the fact that most of them were roadworthy and in good condition with current
warrants of fitness and registration labels; the fact that some had broken ignition
barrels and side windows and personal possessions in them; the fact that most were
worth much more than the average scrap price of $200 which the yard paid; the fact
that the records showed many of them were supplied under the same client number;
and the fact that most did not have registration plates.
First trial
[13]
At Mr Cullen’s first trial he was charged and convicted as a principal on the
offences of receiving the stolen motor vehicles.
On appeal to this Court his
convictions were set aside on a number of grounds and a retrial was ordered.2
[14]
One of Mr Cullen’s successful grounds was that he could not commit the
offences as a principal if TML held the scrap metal dealer’s licence under the SDP
Act. This Court said:
[29]
If Tamaki held the licence, Mr Cullen could only have been guilty of
receiving if the Crown demonstrated that he was a party to it. That could
have been done by proving, beyond reasonable doubt, either that he helped
or encouraged Tamaki to commit the offence, or assisted in its commission.
[30]
At trial, the Crown seems to have treated Tamaki as Mr Cullen’s
alter ego. That approach conflated the different legal personalities of
Mr Cullen, as an individual, and Tamaki, as a corporate entity. It explains
the absence of any direction on that topic from the trial Judge. Nevertheless,
the Judge’s misunderstanding as to the true owner of the licence contributed
to some confusion about the basis on which Mr Cullen could be prosecuted.
Plainly, if he did not hold the relevant licence, he could not commit the
offence as a principal.
2
Cullen v R [2012] NZCA 413.
The new indictment
[15]
Under the new indictment Mr Cullen was charged with receiving the relevant
stolen vehicles “together with Tamaki Metals Ltd”. A pre-trial challenge to this
wording was dismissed by this Court.3
[16]
In dismissing the challenge, this Court said:
[8]
… As a general rule the Crown may accuse someone of being party
to a crime without charging the principal at all, let alone having the principal
stand trial at the same time. In such a case it is necessary to prove that the
principal committed the offence, but that is not tantamount to a conviction,
nor does it affect the party’s right to a fair trial. In this case, the company is
not standing trial and it is not in jeopardy of conviction. It has no standing to
intervene in Mr Cullen’s prosecution. On the record before us it was plainly
appropriate to charge Mr Cullen as a party; indeed, he told us that he was “in
charge of the company’s scrap metal business.” …
Second trial
[17]
The Crown case at the second trial was that Mr Cullen was the “controlling
mind” of TML, knew that the vehicles were at the yard, intended to exercise control
over them, was reckless as to whether they had been stolen, and, intentionally
assisted the company to acquire possession of each vehicle. The Crown said that
Mr Cullen and therefore TML intended to exercise control over the vehicles he knew
were in the yard because they were going to be processed in accordance with the
yard’s established procedure. The Crown position was that the jury could also rely
on these same acts to establish both the primary offending by the company and
Mr Cullen’s secondary offending by assisting, encouraging or procuring TML’s
offending.
[18]
The defence case was that TML did not receive any of the vehicles and that
Mr Cullen could not therefore be liable personally as a party. TML was not liable
because Mr Cullen’s role was largely administrative and was not sufficiently “hands
on” that he had possession of the vehicles or the necessary mens rea to be attributed
to TML.
3
Cullen v R [2013] NZCA 517.
[19]
In the course of the trial, the defence sought to ensure that the question trail
for the jury and the Judge’s directions properly reflected the defence case based on
receipt of vehicles by other employees. There were arguments in chambers before
Judge McNaughton relating to the question trail and his directions.
[20]
The Judge determined that Mr Cullen was the only person whose acts and
thoughts could be attributed to TML. He said:
To take possession the company needs to know that the car is there and the
company needs to intend to exercise control over it and that is not Mr Leha
that is Mr Cullen. ... And it is the company’s mental element, not the
servant’s mental element. You can’t separate out physical possession,
knowledge that it is there and intention to exercise control. They all have to
happen together and it has to be the company. ... The company needs to ...
get physical custody of the vehicle. The company, ie Mr Cullen, needs to
know that vehicle is there. The company, ie Mr Cullen, needs to intend to
exercise control and at that point the company has possession and at that
point receiving is complete.
[21]
The question trail and the directions reflected this determination.
[22]
The question trail for each count followed the same format. For Count 1 it
read:
1. Are you sure that the Nissan Primera … was valued at between $500 and
$1,000?
Not in dispute
2.
Are you sure that the Nissan Primera … was stolen or previously
obtained by any other crime on 4 June 2009 at Auckland?
Not in dispute
3. Are you sure that the Nissan Primera … came onto the yard at Tamaki
Metals Limited between 4 June 2009 and 18 June 2009?
Not in dispute
4. Are you sure that Tamaki Metals Limited, ie the accused knew that
vehicle was at the yard?
YES: Continue to next question. NO: Find the accused not guilty and stop.
5. Are you sure that Tamaki Metals Limited ie the accused intended to
exercise control over the vehicle?
YES: Continue to question 6. NO: Find the accused not guilty and stop.
6. Are you sure that at the time Tamaki Metals Limited intended to exercise
control over the vehicle that Tamaki Metals Limited ie the accused was
reckless as to whether that vehicle was stolen or previously obtained by a
crime?
YES: Continue to next question. NO: Find the accused not guilty and stop.
7. Are you sure that accused assisted encouraged or procured the company’s
receiving of that vehicle?
YES: Continue to question 8. NO: Find the accused not guilty and stop.
8. Are you sure that assistance, encouragement or procurement was
intentional?
[23]
The Judge’s directions to the jury on the issue of TML’s knowledge were:
[34]
But when it comes to knowledge, what is the mind of the company,
how does the company know anything if it is just a legal construction on a
piece of paper? Well, what the law does is identify the controlling officers of
the company as effectively the mind and bodies of the company, and that is a
question of law for me to decide. It is for me to decide who those people are,
who the people are who would be effectively the mind, controlling mind and
body of the company, and I direct you as a matter of law that that is the
accused Mr Cullen. So that is not a question you have to decide, I decide it
as a question of law. Effectively he is the only person in a position to be the
controlling mind of the company, and that is obviously because he was the
sole director, he was the chief executive officer, he controlled and was
responsible for the company’s employees and that included the people who
were doing the buying, Mr Leha, Tavake Leha, Ron McPherson, Clayton
Rogers. None of those people would qualify as a directing mind of company
so for your purposes the mind of the company is the mind of the accused
Mr Cullen.
[35]
So question 4 requires you to be sure that Tamaki Metals Limited,
that is the accused Mr Cullen, knew that the particular vehicle and in this
case it is Nissan Primera … was at the yard.
[24]
On the issue of the nature of Mr Cullen’s liability as a party, the Judge’s
directions were:
[71]
Next question. Question 7. So if you have got this far you have
found or you are satisfied beyond reasonable doubt that Tamaki Metals
Limited has committed the crime of receiving, and so questions 7 and 8 deal
with the accused’s participation in that crime as a party, and there are two
questions you need to answer. The first question 7 is, “Are you sure that the
accused Mr Cullen assisted, encouraged, or procured the company’s
receiving of that vehicle?” Well on the prosecution case the accused was
intentionally assisting and encouraging each of these separate offences of
receiving stolen vehicles by the company because he was completing
dealer’s records after the purchase, and as long as he continued to complete
those records and took no steps to have any of these vehicles removed from
the yard and let the processing of these cars continue, cars being driven in in
good condition at the start of the process and hauled out crushed and stripped
on the back of the truck at the end, the Crown say to you he was assisting
and encouraging each transaction because this was an ongoing operation
week in, week out. None of this could have happened without his
encouragement and assistance, and the Crown rely on exactly the same
evidence to answer question 7. The dealer’s records, the use of number 527,
the number of cars coming in, their condition, the lack of registration plates,
the damaged ignition barrels ….
[25]
The Judge’s directions on the issue of the point in time at which recklessness
had to be established were:
[52]
And the time at which you assess that state of mind is the point at
which the company, which means Mr Cullen, at the point that the company
Mr Cullen intended to exercise control over the vehicle. So in a sense, what
happened to the vehicle before that is not strictly relevant. Someone else has
already bought this car, someone else has already inspected it, but that is not
relevant. What you need to do is assess the accused’s state of mind, the
company’s state of mind at the point where he decided to exercise control
over it. Not back at the point where the car was actually bought by someone
else and the money handed over, but when Mr Cullen knew the car was there
and when he intended to exercise control over it.
[53]
So whatever was going on at the front line, in the buying of the cars,
you do not have to resolve that. You do not have to work out exactly how it
was, how it was working. You do not need to be satisfied about that beyond a
reasonable doubt. You do not have to work it out why all these cars came in
in June or whether it happened in the weekend, on a Saturday or a Sunday, or
whether it happened at night because the security was slack. You do not
even [have] to decide who was buying these stolen cars, whether it was
Mr Leha, Mr Rogers, Mr McPherson, or a combination or all three. None of
that matters. It is the accused’s knowledge and intention that is important
and the point at which you assess that is at the point where one, he knew the
vehicle was on the yard; and two, at the point he intended to exercise control
over it. And that might have happened later on in the day when the car was
bought, it might have happened the next day, it might have happened two or
three days later, it does not matter. But you need to make the assessment at
the time he intended to exercise control over the particular vehicle, and the
question you need to ask is, “Was he aware of the risk that the vehicle might
be stolen, and did he take that risk? And given the nature of the risk which he
recognised, was it unreasonable to take?” And this is where the Crown and
defence direct most of [their] arguments.
Legal principles
[26]
There is no dispute that:
(a)
In this case the essential elements of the offence of receiving under
s 246 of the Crimes Act requires proof beyond reasonable doubt of:
(i)
receiving of property stolen or obtained by a crime from
another person (the physical element); and
(ii)
recklessness as to whether the property received was so stolen
or obtained by another crime (the mental element).
(b)
The physical element of “receiving” is satisfied as soon as the
defendant acquires possession or control of the property.4 The fact
that someone else may have acquired possession or control of the
property before the defendant does not necessarily prevent the
defendant from committing the offence.5
(c)
The receiver must have the mental element of “recklessness” at the
time the property is received. Recklessness at a later time, after the
property has been received, is insufficient.6
(d)
A company is capable of committing the offence of receiving. 7 In
particular, a company which holds a licence under the SDP Act is
capable of committing the offence because the offence is one of the
specified offences under that Act, conviction for which leads to
cancellation of the licence.8
(e)
As a company has no physical existence or mind of its own, the
physical and mental elements of the offence of receiving by a
4
5
6
7
8
Crimes Act, s 246(3).
Anderson v Police HC Wellington AP284/97, 10 October 1997 citing R v Cavendish [1961]
1 WLR 1083 (CA).
R v Kennedy [2001] 1 NZLR 314 (CA) at [11].
Andrew Simester, Warren Brookbanks and Neil Boister Principles of Criminal Law (4th ed,
Brookers, Wellington, 2012) at [7.2] and Meaghan Wilkinson “Corporate Criminal Liability –
The Move Towards Recognising Genuine Corporate Fault “ (2003) Canta L R 142.
Secondhand Dealers and Pawnbrokers Act 2004 [SDP Act], s 16(1)(b) and definition of
“specified offence” in s 4.
company will comprise the acts and the state of mind of an individual
or individuals.9
(f)
The Courts have developed rules for determining whether and when
the acts and the states of mind of a particular individual or particular
individuals should be attributed to the company.10 To determine these
questions, courts examine the particular statutory provision creating
the offence, Parliament’s policy intentions, and the particular
company’s legal and actual management structures.11
(g)
A person may be a party to the offence of receiving if he or she assists
or encourages a company, as the principal party, to commit the
offence.12
(h)
Subject to any contrary statutory provision, a person whose acts and
state of mind are attributed to a company may also be personally
liable for the same offence.13
Attribution of Mr Cullen’s acts and state of mind to TML
[27]
The underlying dispute in the case is whether Judge McNaughton was right
to determine that the acts and state of mind of Mr Cullen, and only Mr Cullen, could
be attributed to TML for the purpose of TML’s offence under s 246. Mr Cassidy’s
principal submission is that the Judge was wrong because the acts and states of mind
of the other employees of TML should not have been excluded.
[28]
9
10
11
12
13
An examination of s 246 does not provide any clear guidance on the question
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7 (PC)
at 12 where Lord Hoffmann observed that there is no such thing as a company “as such”, only
the applicable rules; Simester, Brookbanks and Boister, above n 7, at [7.2.4]; and Neil Campbell
“Corporate Personality” in Peter Watts, Neil Campbell and Christopher Hare (eds) Company
Law in New Zealand (LexisNexis, Wellington, 2011) 27 at [2.3]–[2.4].
Meridian, above n 9.
Ibid (the activities of those in de facto control of a company were attributable); Nordik Industries
Ltd v Regional Controller of Inland Revenue [1976] 1 NZLR 194 (SC); ABC Developmental
Learning Centres Pty Ltd v Wallace [2006] VSC 171 and Simester, Brookbanks and Boister,
above n 7, at [7.2.4].
Crimes Act, s 66(1)(b)–(d) and the two earlier decisions in this Court, above ns 1–2.
Compare Cullen v R, above n 2, and Hamilton v Whitehead (1988) 166 CLR 121 at 128.
of attribution for receiving by a company. Nor are Parliament’s intentions apparent
from the statutory position. In the case of a company with a licence under the SDP
Act there is, however, some indication that the company’s offending would need to
involve senior management because of the unlikelihood of Parliament intending the
licence under the Act to be lost merely as a result of the actions of junior employees.
The focus of the SDP Act appears to be on the actions of the licence holder and those
responsible for its management.14
[29]
When, however, TML’s legal and actual management structures are examined
the position is clear:
(a)
Mr Cullen had sole legal responsibility for the establishment and
operation of TML. He accepted that he set it up, he was the sole
director of the company, he applied for the company licence under the
SDP Act and he was named on the licence as the only person involved
in TML’s management.
(b)
Mr Cullen had sole actual management responsibility for the
operation of TML’s business. He accepted his day to day role in the
management of the business meant that he was “in charge of the
company’s scrap metal business”.15
(c)
The roles and responsibilities of Messrs Leha, Rogers and McPherson
were at a quite different level.
[30]
In light of this examination of the legal and actual management structures of
TML, we agree with Judge McNaughton’s determination that as a matter of law only
the acts and state of mind of Mr Cullen could properly be attributed to TML.
[31]
Judge McNaughton was correct to view the matter as a question of law. As
Lord Reid said in Tesco Supermarkets Ltd v Nattrass:16
14
15
16
SDP Act, ss 6 and 39.
Cullen v R, above n 3, at [8]
Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (HL) at 170.
It must be a question of law whether, once the facts have been ascertained, a
person in doing particular things is to be regarded as the company or merely
as the company’s servant or agent. In that case any liability of the company
can only be a statutory or vicarious liability.
[32]
If, in a jury trial, the facts on which the question of law is to be determined
are in dispute, then the facts will need to be left to the jury to find in the first
instance.17 But if, as in this case, the relevant facts are not in dispute, the Judge will
be in a position to give the jury an appropriate direction on the question of law on the
basis of the undisputed facts.
[33]
At the same time it remained open to Mr Cullen to raise as a defence, as he
did at trial, that no offence was committed by TML because the stolen vehicles were
in fact “received” by Messrs Leha, Rogers and McPherson and not by Mr Cullen
who, it was said, did not know that the vehicles were in the yard when they were
received and was therefore unable to form the requisite reckless intent at the critical
time. Questions 4, 5 and 6 in the Question Trail and the Judge’s directions correctly
left these factual issues for the jury.
[34]
Once it is accepted that the Judge was correct to determine the question of
law in relation to the attribution of Mr Cullen’s acts and state of mind to TML, the
two remaining grounds of appeal may be addressed shortly.
The nature of Mr Cullen’s liability as a party
[35]
Mr Cassidy submits that the Judge’s description of Mr Cullen’s assistance
and encouragement of TML’s offending by completing the records and taking no
steps to have any of the vehicles removed from the yard and letting the processing
continue was not evidence of secondary participation as it post-dated the completion
of TML’s receiving. This type of evidence was simply evidence upon which the jury
could have inferred TML’s possession of the stolen vehicles. It established the
physical element of the offending. This submission is dependent on the acceptance
of the related proposition, contrary to the Judge’s attribution direction, that TML
received the vehicles via the acts of other employees.
17
Tesco Supermarkets, above n 16, at 173.
[36]
We do not accept this submission. The Judge’s direction was an adequate
explanation to the jury about how Mr Cullen could be a secondary party to TML’s
criminal offending by offering intentional assistance and encouragement.
Mr Cassidy’s reference to the timing of the receiving is addressed in the context of
the next ground of appeal.
The point in time at which recklessness had to be established
[37]
Mr Cassidy submits that confusion has arisen because Judge McNaughton
formed the erroneous view that TML could only take possession once Mr Cullen had
knowledge of the vehicle and intended to exercise control over it. The Judge erred in
treating Mr Cullen and TML as the same entity.
The possibility that another
employee could have, in a legal sense, taken reckless possession on behalf of TML
was wrongly excluded.
[38]
We do not accept this submission because, as the Crown points out, it relies
on the unfounded complaint that Judge McNaughton erred in refusing to attribute the
acts of the other employers in purchasing vehicles to TML. As we have already
upheld the Judge’s direction on attribution, there was no error in respect of his
direction as to the time at which recklessness had to be established. There is nothing
exceptional in the proposition that a vehicle might be on TML’s yard without being
in its possession (until it came to the attention of Mr Cullen). It was the timing of
Mr Cullen’s recklessness that mattered, not any recklessness by the other employees
whose acts and state of mind could not in the circumstances of this case be attributed
to TML.
[39]
In support of his submission on this ground of appeal, Mr Cassidy also argues
that a distinction is to be drawn, in relation to what acts or states of mind of
employees can be attributed to TML, between the act of taking possession, on the
one hand, and the state of mind concerning recklessness, on the other.
That
proposition would mean that the acts of the other employees, acting within their
actual or apparent authority from TML, are sufficient to constitute the physical
element of receipt of the property by TML, but their state of mind is not attributable
to TML so as to establish the mental element of recklessness. On Mr Cassidy’s
analysis, any recklessness on the part of Mr Cullen after the property has been
physically received cannot constitute the mental element of TML’s offence, because
it is later in time than the receipt, and accordingly Mr Cullen cannot be liable as a
party.
[40]
We do not consider that analysis is correct. Section 246(1) does not
contemplate a separation of the physical element from the mental element in this
way. The knowledge or recklessness of the defendant is to be assessed at the time of
the receipt of the property. In this context where the defendant is a company, both
elements are to be assessed at the time any person whose state of mind can be
attributed to the company asserts control over the property. Only then is the property
received by the company in terms of s 246.
[41]
As Mr Cassidy acknowledges, if it was proved that Mr Cullen had received a
stolen vehicle, then it would have been open to the jury to accept that, in dealing
with the vehicle as he did, he assisted or encouraged TML’s offending. Mr Cassidy
suggests, however, that, conceptually, this approach is not without difficulty as it
involves the simultaneous offending of both the corporate entity and the individual.
In other words, Mr Cullen is being a party to his own offending.
[42]
In our view, however, there is no difficulty with TML and Mr Cullen, whose
acts were attributed to TML, committing their offences simultaneously, TML as
principal offender and Mr Cullen as a party to TML’s offending.
Contrary to
Mr Cassidy’s submission, this is not inconsistent with the previous decision of this
Court which arose in the different context of charges against both TML and
Mr Cullen as principal offenders when it was necessary to distinguish his mind from
TML’s “mind”. Once Mr Cullen was charged with being a party to TML’s offending,
his guilty mind established both TML’s guilty mind, as the principal offender, and his
own guilty mind, as a party assisting and encouraging TML to commit the offences.
Mr Cullen’s recklessness which constituted TML’s guilty mind and his own guilty
assistance and encouragement existed simultaneously.
Result
[43]
As none of the grounds of appeal has been substantiated, no miscarriage of
justice has occurred and the appeal must therefore be dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent