Common sense suggests conviction for theft quickly leads to an open and shut claim to recover funds stolen. But the law and common sense are often strangers, as experienced by Takaka café owner Alexandra Purucker trying to recover $873,300 she said was stolen by erstwhile friend Iris Huebler.
Huebler was sentenced to four years imprisonment after pleading guilty to five counts of theft. The High Court was told Ms Purucker travelled regularly to her native Germany over the period 2011-2018, leaving Huebler in charge of business affairs. Huebler was subsequently charged with theft following a forensic accountant’s analysis identifying suspicious transactions totalling $873,364.
As part of plea bargain negotiations between Huebler and prosecutors prior to sentencing, the amount allegedly stolen was reduced to $700,000. Jumbled in with these negotiations were allegations of theft by Huebler against another person. Charges in respect of this further theft were withdrawn.
One year on, Ms Purucker took legal action against Huebler seeking to recover $873,300 as a civil debt. Huebler challenged the debt claim, saying any money supposedly taken had been paid back. This lead to a legal tussle in the High Court as to the status of her prior theft conviction when applied to a civil claim for recovery.
The general rule is that conviction is proof only of a conviction, not the factual circumstances surrounding an offence. Criminal liability requires proof beyond a reasonable doubt; civil liability, proof on the balance of probabilities. The differing rules has led to the Gilbert & Sullivan situation of two trials, one criminal the other civil, with conflicting outcomes. High profile cases overseas have seen a person found not guilty of murder in criminal proceedings ordered to pay damages for unlawful killing in a subsequent civil case.
In New Zealand, the Evidence Act rule is that while conviction is proof that the person committed an offence, that fact can be challenged in subsequent civil cases. In any subsequent civil case, a judge must first assess whether there are sufficient grounds to challenge the fact of the conviction.
Justice Isac ruled Huebler had no grounds to challenge her recorded conviction for theft of $700,000. She provided no evidence at the time of her plea negotiation that there had been no theft. In the time since conviction, she had not taken any steps to disprove evidence of theft provided by the forensic accountant.
Consequently, Huebler’s theft conviction is evidence that that she is liable to repay Ms Purucker, but only up to $700,000; the amount agreed in the plea negotiations. That leaves a shortfall of $173,000 allegedly stolen. It is open for Huebler to dispute in a civil debt recovery claim whether this further amount is owed, Justice Isac ruled.
Purucker v. Huebler – High Court (11.05.23)
23.065