Nisbett v Police [2012] NZHC 548 (27 March 2012)

Last Updated: 24 April 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2010-419-000022 [2012] NZHC 548

CRAIG GRANT SCOTT NISBETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 December 2011

Appearances: N Sainsbury for Appellant

F Cleary for Respondent

Judgment: 27 March 2012

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Tuesday, 27 March 2012 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Mr N Sainsbury, Barrister, Wellington.

Ms F Cleary , Elvidge & Partners, Solicitors, Gisborne

NISBETT V POLICE HC GIS CRI-2010-419-000022 [27 March 2012]

Introduction

[1] This appeal has a long and somewhat unfortunate history. Mr Nisbett was originally charged on 4 April 2007 with theft of a relocatable bach valued at $37,800. He pleaded not guilty. The defended hearing commenced in Wairoa District Court on 31 January 2008 before Judge M Harland. It was adjourned part heard. It recommenced in the Gisborne District Court on 23 April 2008. Two further days of evidence was heard before it was adjourned again. The hearing was finally completed in the Wellington District Court on 24 July 2008. Judge Harland then delivered a reserved decision on 16 December 2008 finding the charge of theft proved beyond reasonable doubt.

[2] On 23 and 24 June 2009, a disputed facts hearing was held in the Wellington District Court regarding the value of the bach for the purposes of reparation. Judge Harland delivered an oral decision on that issue on 24 June 2009. At that hearing, Mr Nisbett also applied for a discharge without conviction. Judge Harland declined the application, giving reasons in a judgment dated 2 July 2009.

[3] On 4 December 2009, Mr Nisbett was sentenced in the Hamilton District

Court. He was convicted and ordered to pay reparation in the sum of $27,500.

[4] Mr Nisbett subsequently filed a notice of appeal against both conviction and sentence. Various timetable orders were made by the High Court at Gisborne. Mr Nisbett did not comply with these orders. Counsel now representing Mr Nisbett sought further time to take instructions on an issue of counsel competence and, pragmatically, whether to proceed at all, given Mr Nisbett’s subsequent conviction and sentence to imprisonment on other fraud charges. Mr Nisbett’s counsel did however receive instructions to proceed. Points on appeal were filed on 24 June

2011.

[5] The appeal was finally heard in the High Court at Gisborne on 14 December

2011.

Factual background

[6] The bach at issue was described as a modest relocatable pod which was situated at the Blue Bay Motor Camp in Opoutama on the Mahia Peninsula in the Northern Hawkes Bay. It was owned by a Mr Banks and a Mr Mear. The motor camp was sold to Hawke Bay Property Holdings Limited (HBPH Ltd). It was to be subdivided into sections for sale to members of the public. Mr Nisbett was one of three directors of HBPH Ltd. Mr Nisbett was also the sole director of another company, Blue Bay Resort Limited (BBR Ltd), which was a company formed to continue the motor camp business until it was closed. As a consequence of the redevelopment, the bach had to be moved from the motor camp. Mr Nisbett arranged for it to be moved from its original site at the motor camp to another temporary location in the camp. After some time at that temporary location, Mr Nisbett again arranged for its removal to a storage area on land owned by a local building contractor. He then sold the bach to a third party who arranged for its removal to land that he owned, some 10 kilometres south of Wairoa.

[7] Mr Nisbett argued that he was not guilty of theft because he was acting on behalf of HBPH Ltd at all times and was directed to sell the bach because it had been abandoned and/or expenses were owed to HBPH Ltd by the owners. He therefore argued that he had a claim of right in respect of the bach and did not act dishonestly in selling it.

Points on appeal

[8] Counsel for Mr Nisbett submits that Judge Harland erred in holding Mr Nisbett liable as either a party to the actions of HBPH Ltd or BBR Ltd or as a principal in his own right. He submits that the correct approach would have been to have charged Mr Nisbett as a party to an offence committed by HBPH Ltd as he was a director of the company and acting on the company’s behalf in dealing with the bach.

[9] Counsel further submits that for, Mr Nisbett to have been found guilty, the prosecution needed to prove beyond reasonable doubt that HBPH Ltd had committed

the offence of theft as principal and that Mr Nisbett, in his capacity as a director, had helped in the commission of the offence so as to make him a party under s 66 of the Crimes Act 1961.

[10] Alternatively, he submits that it might have been arguable for the prosecution to allege that Mr Nisbett was acting outside the scope of any authority of the company or that the criminal actions were not associated with the actions of the company.

[11] He submits that failure to charge HBPH Ltd as a principal meant that Mr Nisbett suffered from a reversal of the burden of proof, in that he had assumed a burden to prove that he was acting on behalf of the company and to show the reasonableness of those actions, when it should have been for the prosecution to prove that HBPH Ltd was guilty as a principal or that he was not acting for the company.

[12] Counsel also submits that Judge Harland was wrong to draw inferences against Mr Nisbett and against evidence that was called on his behalf. In particular, he submits that Judge Harland was wrong to be critical of the failure of the defence to cross-examine earlier witnesses on the evidence of a Ms Raroa when she had not been available as a defence witness at the time of that earlier cross-examination. He submits that Judge Harland was also wrong to make an adverse finding against Mr Nisbett for not calling corroborative evidence of legal advice he said he had received.

[13] Finally, he submits that Judge Harland did not give proper weight to the evidence of Ms Nisbett’s honest belief that HBPH Ltd was entitled to dispose of the bach. In particular, Judge Harland did not address the reality of the situation of a pressured development requiring action to remove a building that was non-compliant in terms of local Council requirements.

[14] As to the appeal against sentence, counsel submits that in assessing the value for the purposes of reparation, Judge Harland erred in using replacement value rather than market value as the measure for loss and in not giving sufficient weight to the

lack of compliance. He submits that the correct approach for reparation purposes was a valuation based on market value and adjusted for lack of building consent.

[15] Counsel also appeals against Judge Harland’s refusal to grant a discharge without conviction. He submits that Judge Harland erred when placing undue weight on Mr Nisbett’s attitude in his dealings with the owners of the bach and over emphasised the lack of remorse or contrition. He submits that the offer of reparation must have greater weight than statements of remorse.

[16] Finally, he submits that Judge Harland erred when assessing the direct and indirect consequences of a conviction. He submits that had a correct assessment been made of the gravity and consequences of the conviction then it would have been proper to exercise the Court’s discretion to discharge Mr Nisbett without conviction.

Failure to charge Hawke Bay Property Holdings Limited

[17] Mr Nisbett was originally charged on 4 April 2007. The information originally contained the words “(jointly offended with Blue Bay Resort Limited)” before the words “did steal a bach valued at $37,800.00 the property of Douglas Banks”. The information was amended by consent on the first day of the defended hearing, 31 January 2008, to delete the words “(jointly offended with Blue Bay Resort Limited)”. The Court was advised by the prosecutor that the police had intended that Mr Nisbett be jointly charged with the company, but they had not actually laid a charge in respect of BBR Ltd. There was no objection by Mr Nisbett’s counsel at the time to the deletion of the reference to BBR Ltd.

[18] Counsel submits that the true principal for the offence of theft was HBPH Ltd, not Mr Nisbett nor BBR Ltd. He submits that in order for Mr Nisbett to be found guilty of the charge it would be necessary for the prosecution to prove that he had acted as a party to the offence committed by HBPH Ltd or, alternatively, that he was acting outside the scope of authority that he held as a director of HBPH Ltd, in which case he could be liable as a principal offender. In either case, he submits the

burden was on the prosecution to prove the involvement of HBPH Ltd or the scope of authority vested in Mr Nisbett.

[19] It seems to me that counsel’s primary submission proceeds on a false premise, and that is that the entity that committed the actions, which together comprised the actus reus of theft, was HBPH Ltd. Mr Nisbett was charged under s 219 of the Crimes Act 1961. The Crimes Act is, in general, directed at the actions of individuals not companies. It is possible for companies to be charged with criminal offences under the Crimes Act and other statutes, but that it is somewhat unusual, especially for offences under the Crimes Act.

[20] Counsel cites the case of Van Niewkoop v Registrar of Companies[1] and refers to the fact that both the prosecution in its submissions and Judge Harland in her decision referred to the case as authority for the proposition that it was not necessary to prosecute a company where its shareholding had changed from the time that the offence occurred. Counsel submits that is not the situation in the present case where HBPH Ltd’s shareholding had remained the same. HBPH Ltd should therefore have been charged with theft.

[21] The comments of the High Court in that case should, however, be seen in the context of the offences with which Mr Van Niewkoop was charged. Mr Van Niewkoop was charged with aiding and abetting a broker to commit offences under regs 19, 20 and 21 of the Securities Act (Contributory Mortgages) Regulations 1988. Regulations 19, 20 and 21 impose restrictions on brokers paying contributions out of the trust account of that broker’s nominee company. A contributory mortgage broker is defined as meaning a person who offers an interest in a contributory mortgage to the public for subscription or manages interests in a contributory mortgage, being interests that have been offered to the public for subscription whether or not that person holds beneficially any interest in that mortgage. A broker is invariably a limited liability company. The principal party is therefore always the broker. Mr Van Niewkoop was not even a director of the broker. Instead, he was alleged to have been the person primarily involved with the arranging of the mortgages at

issue. He could not have been charged as a principal party. In Van Niewkoop, Laurenson J held that Mr Van Niewkoop could properly be convicted as a secondary party where the broker was not charged, providing that there was proof beyond reasonable doubt that the broker may have committed the offence and Mr Van Niewkoop had knowledge of the essential elements of the offending by the broker and in some way assisted, encouraged or procured the offending by the broker.

[22] Another case where a director was held to be criminally liable for the actions of a company was Cardin Laurant Ltd v Commerce Commission.[2] The company, Cardin Laurant Ltd, and its director, Mr Knight, were charged with an offence against s 29(4) of the Fair Trading Act 1986 of supplying or offering to supply goods of a kind in respect of which a product safety standard had been prescribed when those goods did not comply with that product safety standard. The company was a

retailer operating a shop in the Downtown Shopping Centre at Auckland selling children’s nightwear, which did not meet fire safety standards. Mr Knight was a director and secretary of the company and held 50 percent of the shares in the company. It was not suggested that at the material time he was present in the shop actively participating in a contemporaneous offer to sell to a member of the public. The prosecution case was that, behind the scenes, he was the facilitator and guiding light of the company in general and the sale of the nightwear in particular. Because he was not present in the shop at the time the nightwear was offered for sale, Mr Knight could not be a principal offender.

[23] Both these cases involved offences under statutes other than the Crimes Act. In one, the individual charged could never be a principal party because of the use of the word “broker” in the offence provision and it’s definition in the Regulations. In the other, the individual charged was not a principal party because he did not, in fact, commit the actions which together comprised the actus reus of the offence.

[24] In the present case, Mr Nisbett dealt personally with the third party who bought the bach. He sourced him as a buyer, negotiated the price, and personally received the cheque from the buyer. In those circumstances, I agree with Judge

Harland that it mattered not whether Mr Nisbett was acting as a principal party or a secondary party to offending by HBPH Ltd. Mr Nisbett committed the actions which together comprised the actus reus of theft. In those circumstances, it was unnecessary to charge HBPH Ltd. The burden of proof was also not reversed by the prosecution’s decision not to charge HBPH Ltd.

[25] In terms of s 219(1)(b) of the Crimes Act 1961, Mr Nisbett personally dealt with the bach by way of sale to a third party with intent to deprive the owners permanently of the bach after obtaining control over the bach in whatever manner. The key question was whether he did so dishonestly and without claim of right and it is to issues bearing upon that question to which I now turn.

Evidence of Denise Raroa

[26] Counsel for Mr Nisbett submits that a witness who was initially to be called as a prosecution witness should have been called as a prosecution witness and that a miscarriage of justice occurred, notwithstanding that she was called as a defence witness.

[27] Ms Denise Raroa was the camp manager at the Blue Bay Motor Camp. At the commencement of the hearing on 31 January 2008, the prosecutor advised the Court that she intending calling six witnesses to give oral evidence. She named one of those as Ms Raroa. However, her evidence had not yet been reached when the hearing was adjourned part heard.

[28] By letter dated 28 February 2008 and memorandum to the Court dated 29

February 2008, the prosecutor advised that Ms Raroa would no longer be called as a prosecution witness on the basis that after reviewing the notes of evidence from the first day of the hearing the prosecutor was of the opinion that she was no longer required. The prosecutor offered to make Ms Raroa available if the defence wanted to call her as a witness. By letter dated 7 April 2008, counsel for Mr Nisbett advised the prosecutor that the defence still wished to call Ms Raroa to give evidence in the proceedings.

[29] The hearing recommenced on 23 April 2008. The prosecution closed its case shortly before lunchtime that day without calling Ms Raroa. As Ms Raroa was no longer a prosecution witness, she was called as a defence witness. Counsel submits that she should have been called as a prosecution witness thereby giving the defence the advantage of cross-examination. Given her role as camp manager when the bach was removed, counsel submits that it is difficult to understand how she could not give useful evidence as to the narrative of events.

[30] While acknowledging that s 368(2) of the Crimes Act 1961 does not expressly apply to summary proceedings, counsel for the appellant submits that cases decided under the section provide useful guidance for a Court sitting in the summary jurisdiction.

[31] Section 368(2) of the Crimes Act provides:

368 Adjourning trial for witnesses

...

(2) If the Court is of opinion that any witness who is not called for the prosecution ought to be so called, it may require the prosecutor to call him, and, if the witness is not in attendance, make an order that his attendance shall be procured; and the Court may, if it thinks proper, adjourn the further hearing of the case to some other time during the sittings until that witness attends.

...

[32] In Waring v R[3] Potter J summarised the principles derived from the case of R

v Wilson[4] as follows:

[a] While the jurisdiction under s.368(2) may be exercised on a pre-trial basis there may be difficulties because the Judge may not at that stage have a sufficiently complete feel for the case.

...

[b] It will be unlikely that the Court would be prepared to act under the section except in rare cases.

[c] The touchstone must be the interests of justice which include but are not limited to consideration of fairness to the defence.

[d] Witnesses essential to the unfolding of the narratives on which the prosecution is based must be called for the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution...

[e] The Court's discretion under s.368(2) ... should nevertheless be exercised in the light of the traditionally understood role of the Crown prosecutor. The Court will not interfere with the exercise of the prosecutor's discretion, unless perhaps where it can be shown that the prosecutor has been influenced by some oblique motive...

[f] While the prosecutor has a discretion as to which witnesses he calls, the prosecutor must consider the interests of justice. One ground for the exercise of the so-called discretion not to call a witness is that the prosecutor regards the witness's evidence as unworthy of belief and has substantial grounds for challenging it.

[33] Section 368(2) confers a discretion on the Court. However, it is important to note that even if it can be shown that the discretion was wrongly exercised, that does not mean that an appeal against conviction should be allowed. In fact, in this case, Judge Harland was not asked to require the police to call Ms Raroa as a witness. The question, therefore, must be whether a miscarriage of justice resulted from the fact that Ms Raroa was called not as a prosecution witness but as a defence witness.

[34] Counsel refers to two passages in the judgment of Judge Harland in which she notes that certain aspects of Ms Raroa’s evidence were not put to one of the owners of the bach when he gave evidence as a prosecution witness. Presumably, counsel who appeared for Mr Nisbett at trial would have been provided with a brief of evidence for Ms Raroa and was therefore aware of the evidence that she was able to give. In that regard, it seems to me that it should not matter whether Ms Raroa was a prosecution witness or a defence witness. If, in her brief of evidence, Ms Raroa had said something that was inconsistent with that of one of the owners of the bach, then counsel for Mr Nisbett could have put those inconsistencies to the owner of the bach when he gave evidence regardless of whether Ms Raroa was to be called as a prosecution witness or not.

[35] The crucial evidence seems to me to have been an invoice dated 4 April 2005 addressed to the owners of the bach and signed by Ms Raroa for the removal of the bach from the motor camp to storage on land owned by a local building contractor.

As noted by Judge Harland, at that stage there could be no suggestion of abandonment by the owners.

[36] The evidence given by Ms Raroa, which was not put to one of the owners of the bach when he gave evidence, related to purported conversations between Ms Raroa and the owner as to the date by when the bach had to be removed from the motor camp and a discussion with the owner subsequent to the invoice for removal of the bach from the motor camp in which he said he was not happy and that he would ring Mr Nisbett. Even if Ms Raroa’s evidence on these points had been accepted by Judge Harland, I cannot see how her finding that the bach had not been abandoned at that time can be challenged. Ms Raroa did, in fact, end up giving evidence. Counsel’s submission that the defence lost the ability to cross-examine her was not developed. How that may have led to a miscarriage of justice was not explained. In those circumstances, I am therefore of the opinion that no miscarriage of justice occurred when the prosecutor chose not to call Ms Raroa as a prosecution witness.

Mr Nisbett’s alleged honest belief

[37] Judge Harland dismissed Mr Nisbett’s contention that HBPH Ltd was entitled to sell the bach on the grounds that it had been abandoned and was incurring costs as not being credible. Counsel criticises this finding on a number of grounds. Firstly, he submits that the failure to call Ms Raroa as a prosecution witness impacted negatively on Mr Nisbett’s credibility because the Judge subsequently rejected Ms Raroa’s evidence insofar as it supported Mr Nisbett. I do not however consider that there is a link between the decision not to call Ms Raroa as a prosecution witness and the rejection of parts of her evidence. Judge Harland in fact accepted an important aspect of Ms Raroa’s evidence when she said that she had nothing to do with the bach after it had been moved from the motor camp to storage. This is crucial because it is Mr Nisbett’s actions in selling the bach to the third party while it was in storage that formed the basis of the charge. The dealings that Ms Raroa had with one of the owners of the bach when it was still at the motor camp are more by way of background. In any event, Judge Harland did accept her evidence of these dealings to the extent that she accepted that Ms Raroa did tell one of the owners of the bach

that the bach needed to be removed from the motor camp. Ms Raroa was vague about these conversations so the Judge was justified in my view in concluding that there was no agreed date for its removal.

[38] Secondly, counsel returns to the issue of whether HBPH Ltd should have been charged as a principal party when he criticises Judge Harland for referring to the lack of defence evidence from one of the other directors of the company as to lawfulness of the sale of the bach. Mr Nisbett said he had received legal advice from him but did not call evidence to support his contention. In my view, Judge Harland correctly reminded herself that it was not for Mr Nisbett to prove his innocence but for the Crown to prove the absence of a claim of right and to prove that Mr Nisbett acted dishonestly. Without corroborative evidence she was entitled to give Mr Nisbett’s evidence on the issue less weight than she might otherwise have done.

[39] Thirdly, counsel submits that other factors that Judge Harland took into account in assessing Mr Nisbett’s credibility failed to address the reality of Mr Nisbett’s situation and the pressure of significant and unfavourable publicity about the development. However, I am of the view that Judge Harland’s assessment of Mr Nisbett’s credibility was one that was clearly open to her, based on the evidence and her impression of the witnesses. The fact that Mr Nisbett found himself under pressure is not necessarily a factor which would call into question those findings. Judge Harland was well aware of the publicity surrounding the development.

[40] In all the circumstances, Mr Nisbett’s appeal against the finding of guilt is

dismissed.

Reparation

[41] Judge Harland ordered reparation of $27,500. She took as a starting point a replacement value of $45,000, four years after the theft of the bach, from which deductions of $10,000 for the bach’s age and $8,000 for its noncompliance with Council regulations were made, bringing the final figure down to $27,000. To this she added the sum of $500 for various personal effects left in the bach, making the final reparation figure $27,500. The original cost of materials for the bach, which

was built two or three years before its theft, was $18,265. No cost for labour was incurred because the bach was built by a friend of the owners.

[42] It seems to me that Judge Harland erred in two respects when fixing the amount of reparation. First, Judge Harland found that it was appropriate for the reparation to be assessed at the date of the disputed facts hearing in 2009 rather than at the time of the theft in 2005.

[43] Judge Harland had earlier stated that the purpose of reparation was to put victims in the position they were, as best can be done, before the offending occurred. I agree. The value of any item stolen should therefore be assessed for the purpose of reparation at the time it was stolen. Gold jewellery may appreciate in price with the rise in gold prices, whereas a laptop computer will inevitably decrease in value as technology evolves and prices of new electronic goods continue to fall. Overall, however, victims will generally receive greater reparation if the value of items stolen is assessed at the time they were stolen as most moveable items of property decrease in value over time.

[44] The second respect in which Judge Harland erred was in using the replacement value rather than market value.

[45] The figure of $27,000 is considerably greater than the valuations provided by both the expert called by the prosecution and the expert called by the defence. The valuer called by the prosecution assessed the 2009 market value of the bach as

$8,000. If the bach was repaired, he was of the opinion that its market value would increase to $20,000. The valuation was however provided on the basis the bach could be successfully relocated from its present site without incurring any additional costs, compared to a readily accessible site in Wairoa township. The prosecution valuer himself was of the view that there would be additional costs due to the poor access and close proximity of trees to the track along which the bach would have to be moved. The prosecution valuer noted that the bach had been constructed using reasonably low value materials and that it provided a basic standard of accommodation. He noted that many of the architraves around windows and doors had not been fitted nor had the particle board floor been sealed. As such, the bach

was unlikely to meet current building codes and the valuer doubted that a compliance certificate would be issued by the Council. He also stated that the damage to the bach was likely to require remedying prior to the building being moved and may also have triggered additional improvement work to bring it up to the current building code.

[46] By contrast, the valuer called by the defence assessed the value of the bach as at the time of its theft in December 2005 to be $3,500. Again, the defence valuer noted that the bach did not have building consent. It was incomplete as it lacked external flashings and had no external spouting and downpipes. The defence valuer was of the opinion that the bach was not habitable as it did not have any plumbing and its electrical wiring was modest. He noted that a demolition order had been issued by the Council in respect of the bach. Although the value of the bach in situ was $18,000, once you took away the costs required for completion of the bach, the cost of transport to an alternative site, foundations and connection to services, its value came down to $3,500.

[47] It should be remembered that the bach was actually sold by Mr Nisbett to a bona fide third party purchaser for $3,000. This was the figure that a third party was willing to pay after taking into account the costs of transportation, repair of damage and the completion of the bach to a standard where it was in a position to obtain a Council code of compliance. He estimated these costs to be in excess of $20,000. Although the bach cost $18,265 to build, in my opinion it immediately decreased in value when it was no longer able to remain in situ at the Blue Bay Motor Camp and had to be moved. The cost of compliance with Council regulations would also have had a negative impact on the value of the bach.

[48] Taking all matters into consideration, it is my view that a reasonable figure for the purpose of reparation is to take the market value of the bach in 2005 as

$5,000. This is greater than the market value as assessed by the defence valuer, of

$3,500 in 2005, but less than the market value as assessed by the prosecution valuer, of $8,000 in 2009 (which figure did not account for any additional costs which the valuer thought would be incurred). I adopt a figure greater than that of the defence valuer because of the damage caused to the bach through its move from the motor

camp, that is, it had a slighter higher value before it was moved in that it was undamaged at that time.

[49] Mr Nisbett’s appeal against the quantum of reparation is therefore allowed. The order made by Judge Harland is quashed. In its place Mr Nisbett is ordered to pay the sum of $5,500 (which sum includes $500 for personal effects) to Mr Banks and Mr Mear.

Discharge without conviction

[50] In a careful decision dated 2 July 2009, Judge Harland correctly noted the test a Court has to apply when considering an application for a discharge without conviction. After reviewing the appellant’s personal circumstances and the seriousness of the offending, Judge Harland was not satisfied that the consequences of a conviction were out of all proportion to the gravity of the offending. Accordingly, she declined to grant a discharge without conviction.

[51] The essence of counsel’s submission on this aspect of the appeal is that too much adverse weight was placed on Mr Nisbett’s attitude to the complainants and his belief that he was in the right. It is also said that the consequences that he faced professionally at the time of the sentence were also undervalued.

[52] Mr Nisbett’s attitude was assessed by Judge Harland in the context of consideration by her of the seriousness of the offending. She found that his attitude throughout was particularly high-handed and could not simply be explained by the stress of managing the develpment. In my opinion, Judge Harland was entitled to view Mr Nisbett’s attitude as aggravating the offending. She did not, however, take into account the fact that Mr Nisbett elected to run a claim of right defence at trial. In other words, she did not penalise Mr Nisbett for his stated belief that he was in the right.

[53] As to the professional consequences for Mr Nisbett, Judge Harland noted that Mr Nisbett was now bankrupt. Mr Nisbett had practised as both a plumber and gas fitter and a chartered accountant and Judge Harland understood that the relevant

registration bodies would, in event, need to be advised about his bankruptcy. Judge Harland took the entirely orthodox view that offending should not be hidden from professional bodies and that it was up to the professional bodies themselves to determine under their rules whether or not a conviction should be given weight in all the circumstances.

[54] In conclusion, it has not been shown to my satisfaction that Judge Harland erred in the exercise of her discretion not to discharge Mr Nisbett without conviction.

Result

[55] The appeal is allowed in part. The appeal against conviction is dismissed but the order for reparation of $27,500 is quashed. In its place, I direct that reparation of

$5,500 be paid by Mr Nisbett to the owners of the bach, Mr Banks and Mr Mear.

.....................................

Woolford J

---

[1] Van Niewkoop v Registrar of Companies [2005] 1 NZLR 796 (HC).

[2] Cardin Laurant Ltd v Commerce Commission [1990] 3 NZLR 563 (HC).

[3] _{Waring v R HC Whangarei T002099, 14 February 2001 at 3.}

[4] R v Wilson [1997] 2 NZLR 500 (HC).