Byrne v Police - [2013] NZHC 3416

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000319 [2013] NZHC 3416

BETWEEN MICHAEL BYRNE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 6 December 2013

Appearances: R M Mansfield for Appellant
W P Cathcart for Respondent

Judgment: 17 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 December 2013 at 12.00 noon
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

BYRNE v NZ POLICE [2013] NZHC 3416 [17 December 2013]

Background

[1] The appellant, Michael Byrne, stood trial in the District Court at Auckland on six counts of selling cocaine. At the end of the Crown case, Judge Moses made a finding under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIPA) that, on the balance of probabilities, Mr Byrne had been involved in the offending.1 The Judge later held that Mr Byrne was not fit to stand trial on account
of his medical and psychiatric conditions, including dementia.2 He discharged

Mr Byrne under s 25(1)(d) of the CPMIPA and stayed the proceedings against him.

[2] Prior to becoming ill Mr Byrne ran a gymnasium in Auckland. It is now run by his wife, though Mr Byrne still works in it part-time. Three of Mr Byrne’s friends have put money into the business. Mr Byrne applied for permanent name suppression in order to protect his family’s source of income and his friends’
investments. Judge Moses refused the application3. Mr Byrne appeals the decision.

[3] The appeal is brought pursuant to s 115C Summary Proceedings Act 1957. Collins J recently summarised the approach to name suppression appeals in JR v Police and I gratefully adopt his summary:4

[7] Name suppression appeals are conducted by way of rehearing.5 In Austin, Nichols & Co Inc v Stichting Lodestar6 the Supreme Court held that when the High Court conducts an appeal from a decision of a lower court by way of rehearing the High Court must reach its own views on the merits of the case and reach its own independent assessment of the merits of the appellant’s position in order to truly conduct an appeal by way of rehearing. However, in May v May7 the Court of Appeal held that in relation to appeals for name suppression an appeal should only be allowed if the District Court Judge made an error of principle, failed to consider all relevant matters, took into account irrelevant matters, or came to a conclusion that was plainly wrong. The approach taken by the Court of Appeal in May v May was endorsed by the Supreme Court in Rowley v Commissioner of Inland

1 R v Byrne (Ruling 7) DC Auckland CRI-2010-092-15204, 8 October 2013.
2R v Byrne (Ruling 8) DC Auckland CRI-2010-092-15204, 8 October 2013 and R v Byrne DC Auckland CRI-2010-092-15204, 25 October 2013.
3 R v Byrne DC Auckland CRI-2010-092-15204, 25 October 2013. The decision to refuse name suppression was made under the Criminal Justice Act 1985. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 3416
Decision Date: 17 December 2013

CaseChat Overview and Summary

Michael Byrne appeals against the refusal of the District Court Judge to grant him permanent name suppression. The case involves six counts of selling cocaine, and the appellant was found to be unfit to stand trial due to his medical and psychiatric conditions. The appellant seeks to protect his family’s source of income and his friends’ investments through name suppression. The appeal was brought under the Summary Proceedings Act 1957, and the Court of Appeal’s approach in May v May was adopted, where the appeal would only be allowed if there was an error of principle, failure to consider relevant matters, or a plainly wrong conclusion.

The appeal was based on three grounds: the Judge gave too much weight to the finding of involvement in the offending, the Judge considered the effect of non-publication on other gyms without evidential foundation, and the Judge did not give sufficient weight to the effect of publication on Mr Byrne’s health, family, and the business. The Court found no merit in the first two grounds, as the Judge was not in error in his approach or conclusion based on the material before him. The third ground also failed, as the likely consequences of publication were not out of the ordinary to justify displacing the public interest in knowing about the case.

The appeal was dismissed, and the decision of the District Court was upheld. The Court found that the Judge had considered the relevant factors in an orthodox manner, and the new information provided did not justify a different outcome. The Court emphasized the importance of the principle of open justice and the need to balance the interests of the appellant with the public interest in knowing about criminal proceedings.

Orders