J Moss and C M Hanafin for Appellant E J Watt and L E Kenner for Respondent
Judgment:
12 February 2024 at 10 am
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B The appellant must pay costs to the respondent for a standard appeal on a band A basis together with usual disbursements. We certify for second counsel.
The appellant, David Henderson, faced three charges, all laid under the Insolvency Act 2006. Two of the charges were brought against Mr Henderson in July 2015 and the third in July 2016. Mr Henderson seeks to be tried before a jury of his peers. He claims that his reputation has been besmirched by the filing of the charges and that he has a right to a trial so that he can clear his name. Mr Henderson says that his desire to clear his name has been thwarted because, on 6 August 2020, Brendan Horsley, the then Deputy Solicitor-General (Criminal), acting pursuant to a delegation from the Solicitor-General, wrongfully stayed the proceedings under s 176 of the Criminal Procedure Act 2011.
Mr Henderson brought proceedings seeking to overturn the Deputy Solicitor‑General’s decision to stay the proceedings. In the High Court, Edwards J dismissed Mr Henderson’s challenge to the Deputy Solicitor-General’s decision.[1] Mr Henderson now appeals against the Judge’s decision. The appeal is opposed by the respondent, the Attorney-General.
At all relevant times, Mr Henderson was a property developer. He was however adjudicated bankrupt on 29 November 2010. As a bankrupt, Mr Henderson was unable to undertake certain business activities without the consent of the court or the Official Assignee.[2]
[2]Insolvency Act 2006, s 149(1)(a). Pursuant to ss 436–437, the maximum penalty for breaching s 149 is a term of imprisonment not exceeding two years.
In November 2013, the Official Assignee filed an objection to Mr Henderson’s discharge from bankruptcy. The Official Assignee wished to conduct an examination into Mr Henderson’s business affairs. The examination was set down to proceed on 6 August 2015.
On 9 July 2015, just a few weeks prior to the examination, the Official Assignee filed two representative charges against Mr Henderson alleging that he had breached s 149(1)(a) of the Insolvency Act and thus committed an offence pursuant to s 436(1)(b) of that Act. The charges alleged that Mr Henderson, as an undischarged bankrupt, had failed to comply with s 149 of the Insolvency Act in that he had directly or indirectly taken part in the management or control of two businesses without the requisite consents.
Mr Henderson considered that the Official Assignee had given him permission to be involved in the management or control of 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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AGLC
Henderson v Attorney-General [2024] NZCA 9
Case
[2024] NZCA 9
Decision Date
CaseChat Overview and Summary
In Henderson v Attorney-General, the Court of Appeal dismissed an appeal brought by David Ian Henderson, who sought to overturn a decision by the Deputy Solicitor-General to stay criminal proceedings against him. The charges against Henderson related to alleged breaches of the Insolvency Act 2006 while he was adjudicated bankrupt. Henderson argued that his right to a fair trial under section 25 of the New Zealand Bill of Rights Act 1990 was violated by the stay of proceedings. The Court of Appeal held that the stay did not engage section 25 rights because there were no charges requiring determination. The Court also found that the Deputy Solicitor-General did not err in failing to consider the impact on Henderson of granting the stay, as the public interest was the only mandatory consideration. The Court further dismissed Henderson's argument that the stay was made for an improper purpose, finding that the Deputy Solicitor-General had not acted improperly. The appeal was dismissed, and Henderson was ordered to pay costs.