Hayward v Police - [2019] NZHC 848

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-95

[2019] NZHC 848

BETWEEN SHAYNE DUDLEY REGINALD HAYWARD
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 April 2019

Appearances:

J Holden for the Appellant J C Bull for the Respondent

Judgment:

16 April 2019

ORAL JUDGMENT OF GAULT J

Solicitors:
Mrs J Holden, Barrister, Auckland (jen@jenniferholden.co.nz)
Ms J C Bull, Meredith Connell, Office of the Crown Solicitor, Auckland

SHAYNE DUDLEY REGINALD HAYWARD v POLICE [2019] NZHC 848 [16 April 2019]

[1] The appellant, along with his brother, is charged with the theft of a rather valuable gnome, worth approximately $55,000. The gnome was stolen from an Auckland art gallery. The theft attracted considerable media attention.

[2] In addition, the appellant is also charged with possession of a pipe used for methamphetamine and with possession of cannabis.

[3] The appellant and his brother applied for interim name suppression in the District Court under s 200(4) of the Criminal Procedure Act 2011. The grounds for suppression were that publication would cause extreme hardship to the appellant’s niece – because she would be bullied at school as she shares his last name – and because publication would affect their fair trial rights. Judge C M Ryan, who heard the application, declined to grant name suppression, finding there was no arguable case for either ground.1

Alleged facts

[4] The Police allege that the appellant and his brother were outside the Gow and Langsford Art Gallery in Auckland Central around 12:30 am on Christmas day last year. They are alleged to have waited in the area for approximately an hour, before approaching the gnome and breaking it free from its concrete plinth. They then took it away in their car.

[5] Police later conducted a search of the appellant’s address on 24 January 2019. They found a plastic container containing cannabis next to the appellant’s bed, and two glass pipes with a white crystal residue under the living room TV cabinet. The police allege the pipes are used to smoke methamphetamine. The appellant said to the police that he uses them for aromatherapy.

District Court decision

[6] Judge Ryan found there was no arguable case in respect of either extreme hardship or a risk to fair trial rights.

1 R v H and H DC Auckland CRI-2019-004-746, 20 February 2019.

[7] In relation to the risk of extreme hardship to the appellant’s niece, the Judge considered that it was not arguable in this case, for the following reasons:

(a)The appellant’s name is a common one.

(b)Most schools have anti-bullying policies and in situations like this are very protective.

(c)There is no evidence that the school the child attends is one where teasing and bullying is so rife that there is a real risk she may be bullied.

(d)There is no evidence that she is more prone to being upset by school- yard remarks than any other child.

[8] In terms of the risk of prejudice to…

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 Hayward v Police

Details

AGLC: Hayward v Police [2019] NZHC 848
Case: [2019] NZHC 848
Decision Date: 16 April 2019

CaseChat Overview and Summary

The appellant, along with his brother, is charged with the theft of a valuable gnome, worth approximately $55,000, from an Auckland art gallery. Additionally, the appellant is charged with possession of a pipe used for methamphetamine and possession of cannabis. The appellant and his brother applied for interim name suppression in the District Court under section 200(4) of the Criminal Procedure Act 2011, arguing that publication would cause extreme hardship to the appellant’s niece and affect their fair trial rights. Judge C M Ryan declined to grant suppression, finding there was no arguable case for either ground. The appellant appealed this decision to the High Court, arguing that the District Court erred in its assessment of extreme hardship and that new evidence regarding his mental health should be considered.

The legal issues before the High Court were whether the District Court correctly found that there was no arguable case for extreme hardship to the appellant or his niece and whether the new evidence regarding the appellant’s mental health should be admitted. The Court had to determine if the appellant met the threshold for an arguable case of extreme hardship and whether the new evidence provided a sufficient basis for such a finding. The Court also had to consider whether the new evidence was admissible and whether it changed the outcome of the appeal.

The Court found that there was no arguable case for extreme hardship to the appellant or his niece. The Court agreed with the District Court's reasoning, noting that the appellant’s name is common, and there was no evidence to suggest that the appellant’s niece would be bullied at school. The Court further held that the appellant’s mental health, while relevant, did not meet the threshold for extreme hardship without stronger evidence, such as a medical professional’s affidavit. The Court declined to admit the new evidence as it did not sufficiently demonstrate an arguable case of extreme hardship. Even if there were an arguable case, the Court found that the competing interests of the appellant and the public, including open justice, did not warrant an interim name suppression order.

The appeal was dismissed, and the decision of the District Court was upheld.

Orders