Daleszak v Police - [2015] NZHC 1853

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-24

CRI-2014-441-25 [2015] NZHC 1853

BETWEEN
BARBARA CLAIRE DALESZAK

NATALIE ANNA DALESZAK Appellants

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 July 2015

Appearances:

M J Phelps for Appellants
F E Cleary for Respondent

Judgment:

6 August 2015

JUDGMENT OF KEANE J

This judgment was delivered by me on 6 August 2015 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Napier

DALESZAK v POLICE [2015] NZHC 1853 [6 August 2015]

[1] On 6 May 2014, in the District Court, Napier, Barbara and Natalie Daleszak, after pleading guilty to failing on 11 April 2013 to comply with an examination order made under the Criminal Proceeds (Recovery) Act 2009, were convicted of those offences and discharged. Judge B M Mackintosh declined to discharge them without conviction.

[2] On 11 April 2013, the Judge held, they had refused to answer questions concerning “quite crucial aspects” of an investigation the New Zealand Police were then making under the 2009 Act. They had refused to answer, knowing the consequences, after legal advice. They were in breach of an order of this Court. The consequence of convictions for them as registered nurses could not be said to be out of all proportion to their offence. That was an issue for the Nursing Council of New Zealand and for their employer.

[3] On this appeal Barbara and Natalie Daleszak contend that the Judge was wrong not to discharge them without conviction: (i) she overstated the seriousness of their offending; (ii) she understated the consequences their convictions; and (iii) those consequences were out of all proportion to their offending. They seek to have their convictions set aside.

Sequence of events

[4] On 24 March 2011 the police executed a search warrant at the Wairoa home of Robert and Barbara Daleszak. They discovered 15 mature cannabis plants, 23 drying cannabis plant branches hanging in the garage, and a variety of nutrients for cultivation. The street value of the cannabis was said to lie between $57,000 -
$95,000.

[5] The Daleszaks were charged with cultivating cannabis. On 23 August 2011, at the first call-over, Robert Daleszak pleaded guilty to that offence. Barbara Daleszak, then or later, was charged instead with allowing their property to be used for cultivation; as to which she was discharged at trial in September 2012 at the conclusion of the Crown case.

[6] On 27 May 2011 the police received a report from Kiwibank, under the Financial Transactions Reporting Act 1996, advising them that on 8 April 2011, very shortly after Robert and Barbara Daleszak were charged, Barbara Daleszak had made two cash withdrawals totalling $165,000. Later analysis showed that the funds had been gathered from other Kiwibank and ANZ accounts held by the Daleszaks and that term deposits had also been broken.

[7] On 9 June 2011 the Daleszaks sold their Wairoa property for $120,000 to their daughter Natalie, who then lived, and apparently lives still, in the vicinity…

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: [2015] NZHC 1853
Decision Date: 6 August 2015

CaseChat Overview and Summary

The case of Daleszak v Police involved an appeal against conviction by Barbara and Natalie Daleszak, who had been convicted of failing to comply with examination orders made under the Criminal Proceeds (Recovery) Act 2009. They sought to have their convictions set aside, arguing that the judge had overstated the seriousness of their offence, understated the consequences of their convictions, and that those consequences were out of all proportion to their offending. The legal issues before the court were whether the judge had erred in her assessment of the case such that a miscarriage of justice had occurred and whether the direct and indirect consequences of the convictions would be out of all proportion to the gravity of the offence.

The court found that the judge was correct in her assessment of the seriousness of the offence committed by the appellants. The court held that the orders required the appellants to answer questions that they refused to answer, frustrating the specific intent of those orders. The court also held that the possible consequences of the convictions, such as the potential deregistration of the appellants as nurses, were not out of all proportion to the seriousness of their offences. The court found no error in the judge's decision and dismissed the appeal. The court emphasised that the consequences of the convictions were a matter for the Nursing Council of New Zealand and the Hawkes Bay District Health Board to assess. The appellants had responsibly informed the Council and the Board of their convictions and had remained registered nurses in employment, awaiting the outcome of the appeal.

Orders