Haden v Police - [2019] NZHC 1399

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-15

[2019] NZHC 1399

BETWEEN
GRACE HADEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: on the papers

Counsel:

Appellant in Person

C R Stuart for the Respondent

Judgment:

19 June 2019

JUDGMENT OF CULL J

[1] Ms Haden seeks leave to appeal out of time her sentence of $5,000 on five charges of publishing the name of a person who had been granted non-publication orders, contrary to the provisions of ss 241(c) and 263(1) and (2) of the Lawyers and Conveyancers Act 2006 (the Act). Ms Haden unsuccessfully appealed her convictions,1 and now seeks leave to appeal her sentence which was imposed on 11 December 2017, 16 months out of time.2

[2] The grounds for Ms Haden’s leave to appeal out of time have been brought under s 9 of the New Zealand Bill of Rights Act 1990 (the right not to be subjected to torture or cruel treatment). Ms Haden submits that other events and circumstances have brought about the need to appeal the sentence on the grounds of the

1 Haden v New Zealand Police [2018] NZHC 498.
2 Criminal Procedure Act 2011, s 231(2).

HADEN v NEW ZEALAND POLICE [2019] NZHC 1399 [19 June 2019]

disproportionately severe punishment which the Court did not intend, but which has occurred.

Background facts

[3] Ms Haden was charged with breaching an order made under s 240(1)(c) of the Act, which prohibited the publication of the name or any particulars of the affairs of a person charged before the Disciplinary Tribunal. Under s 263(1) of the Act, every person commits an offence who, without lawful excuse, acts in contravention of any order made by the Disciplinary Tribunal under s 240(1)(a) to (c).

[4] Ms Haden faced five charges of breaching the Disciplinary Tribunal’s order because similar conduct was alleged to have taken place on five consecutive occasions from 18 April to 24 May 2017. Ms Haden was convicted in the District Court on 11 December 2017 and was fined $1,000 on each charge, with Court costs and witnesses’ expenses, totalling the sum of $6,000.3 Breaches of a non-publication order by the Disciplinary Tribunal are punishable by fine only under s 263(2), with a maximum fine not to exceed $25,000.

[5]In imposing sentence on Ms Haden, the District Court Judge said as follows:

[13] These matters are finable only. They involve matters of considerable public importance and the maximum fine has been pitched accordingly at
$25,000 per offence. The ability to defy suppression orders in the electronic age is at the fingertips of virtually anybody computer literate. And it is perfectly clear that this defendant has a borderline obsessive desire to bring down the now deceased subject of her publications.

[14] I impose fines on each matter of $1000, Court costs of $130 and if those are beyond your means, Ms Haden, you do have some remedies that you are able to take. There…

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: [2019] NZHC 1399
Decision Date: 19 June 2019

CaseChat Overview and Summary

The case involves Grace Haden, the appellant, who was fined $5,000 on five charges of breaching a non-publication order made under the Lawyers and Conveyancers Act 2006. The New Zealand Police, the respondent, opposed Haden's application for leave to appeal out of time. The legal issues at hand were whether the significant delay in Haden's application for leave to appeal, the retrospective nature of her submissions, and the perceived merit of her appeal, should lead to the grant of leave to appeal out of time. The court considered the criteria for granting leave to appeal out of time, focusing on the reasons for delay and the merits of the proposed appeal. It concluded that the delay was significant, the grounds for the appeal were retrospective, and there was no perceived merit in the appeal. The court ultimately decided that the application for leave to appeal out of time should be declined.

The court's reasoning was based on the significant delay in Haden's application for leave to appeal, which was 16 months since the imposition of the sentence. Additionally, the grounds for the appeal were retrospective, reflecting changes to her health and financial situation 16 months after the conviction and sentence. The court found that these factors did not provide a valid basis to challenge the sentence as being manifestly excessive or wrong in principle. Furthermore, the court considered that Haden's appeal had no perceived merit, as her actions were flagrant breaches of a non-publication order, and the District Court's imposition of fines was not in error in principle. The court concluded that, based on the principles to be applied to a grant of leave out of time, Haden's application should not be granted. The final order was that the application for leave to appeal 16 months out of time by Haden was declined.

Orders