Haden v Police - [2021] NZCA 94

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA171/2018
[2021] NZCA 94

BETWEEN	GRACE HADEN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 March 2021
Court:	Brown, Clifford and Goddard JJ
Counsel:	Appellant in person P D Marshall for Respondent
Judgment:	26 March 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe questions of law set out at [36] are answered at [57] of this judgment.
BThe appeal is allowed.
CMs Haden’s convictions are set aside.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction and summary

The appeal before this Court

In December 2017, Ms Haden was convicted in the District Court on five charges of breaching a suppression order made by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) under the Lawyers and Conveyancers Act 2006 (Act).[1] The prosecution was brought on the basis that a suppression order had been made under s 240(1)(c) of the Act in a written decision of the Tribunal dated 24 November 2016 (the November 2016 decision).[2] Ms Haden defended the charges on the basis that no formal order under that provision had ever been made. Judge Adeane did not accept that argument. He entered convictions on the five charges.[3] Ms Haden’s appeal to the High Court was unsuccessful.[4] Ms Haden sought leave to appeal to this Court. Leave was declined.[5]
[1]Police v Haden [2017] NZDC 28419 [District Court decision].
[2]Waikato Bay of Plenty Standards Committee No. 2 v Wells [2016] NZLCDT 34 [November 2016 decision].
[3]District Court decision, above n 1, at [11].
[4]Haden v Police [2018] NZHC 498 [High Court decision].
[5]Haden v Police [2018] NZCA 255 [First CA leave decision].
A charge in relation to breach of the same suppression order was subsequently laid against Mr Vincent Siemer. In the District Court, Mr Siemer was convicted of breaching a suppression order made by the Tribunal.[6] Mr Siemer’s appeal to the High Court was unsuccessful.[7] However he was then granted leave to appeal to this Court,[8] and that appeal succeeded (Siemer (CA)).[9] This Court held that the Tribunal’s November 2016 decision did not make it sufficiently clear that an order had been made under s 240 of the Act.[10]
[6]Police v Siemer [2018] NZDC 24353. Mr Siemer was charged under s 263 of the Lawyers and Conveyancers Act 2006 with the offence of contravening an order made under s 240.
[7]Siemer v Police [2019] NZHC 1346.
[8]Siemer v Police [2019] NZCA 574.
[9]Siemer v Police [2020] NZCA 178 [Siemer (CA)].
[10]At [32].
When Ms Haden became aware of the outcome in Siemer (CA), she applied for recall of this Court’s first leave decision (First CA leave decision) and for leave to appeal to this Court. Those applications were granted.[11]

Summary

[11]Haden v Police [2020] NZCA 498 [Second CA leave decision].

We agree with the conclusion reached by this Court in Siemer (CA) that the Tribunal did not make an…

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.

Continue reading Haden v Police

Details

AGLC: Haden v Police [2021] NZCA 94
Case: [2021] NZCA 94
Decision Date: 26 March 2021 at 11.00 am

CaseChat Overview and Summary

The appeal before this court concerns the conviction of Grace Haden, who was found guilty in the District Court of five charges of breaching a suppression order made by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal). The appeal focuses on whether the Tribunal made an order under s 240 of the Lawyers and Conveyancers Act 2006 (Act). Haden argued that no formal order under that provision had ever been made, and this argument was rejected by the District Court. The High Court appeal was also unsuccessful. However, after the Court of Appeal previously found in a similar case (Siemer v Police) that the Tribunal had not made a suppression order with sufficient clarity to found a prosecution, Haden applied for leave to appeal to the Court of Appeal, which was granted. The central legal issues were whether the High Court erred in finding the Tribunal's decision was sufficient to constitute an order under s 240 of the Act and, if so, whether Haden's convictions should be quashed. The Court of Appeal found that the Tribunal did not make an order under s 240 of the Act in the November 2016 decision. Although a s 240 order was made orally at the penalty hearing on 8 November 2016, the November 2016 decision did not itself contain a s 240 order. The Court held that the Tribunal's November 2016 decision did not make it sufficiently clear that an order had been made. The position appears to be that an order was made orally at the penalty hearing on 8 November 2016; the November 2016 decision set out the Tribunal's reasons for making that order but did not itself contain a s 240 order. There was no reference at the trial to an order being made orally on 8 November 2016. The trial proceeded on the basis that the relevant suppression order had been made in the November 2016 decision. It would be a miscarriage of justice for Haden's conviction to stand in circumstances where neither the date on which the order was made, nor the terms of that (oral) order, were in evidence at her trial. Therefore, the appeal is allowed, and Haden's convictions are set aside.

Orders