K v Police HC Invercargill Cri-2007-425-36

[2007] NZHC 1137

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2007-425-000036

K

v

NEW ZEALAND POLICE

Hearing:         16 October 2007

(Heard at Queenstown)

Appearances: S Vidal for Appellant

S McKenzie for Crown

Judgment:      25 October 2007

JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1]      This is an appeal against a decision of Judge Farish made in the Queenstown District Court on 25 September 2007.  The appellant appeals against an order that funds continue to be held in a trust account undisbursed, and that a warrant for arrest should issue against him.

[2]      At the outset it is important to state that the matter as it appeared before this Court was entirely different from the scenario in front of Judge Farish.  The matter has been compounded by difficulties in recreating the District Court file.  It appears to have moved between Queenstown and Dunedin at various stages.  Even now, the

complete file is not available including a minute of Judge Crosbie.   It would be

K V NEW ZEALAND POLICE HC INV CRI-2007-425-000036  25 October 2007

useful if the Registrars of the two respective Courts look into the matter to ensure that such difficulties do not arise again.

Background

[3]      The appellant, along with a Mr Irving, was initially charged with burglary and conversion of a ship.  In August 2006 the burglary charge was withdrawn and both accused pleaded guilty to the conversion charge.

[4]      Following the entry of the guilty plea the appellant and Mr Irving were permitted by Judge McDonald to have their passports returned upon the deposit of a total of $50,000 (being $25,000 each) into a solicitor’s trust account.  It was ordered that such funds were not to be disbursed until further order of the Court.  The reason for this was that the prosecution was seeking reparation of $50,000 based on figures supplied to them by the owner of the vessel.  As a result of the conversion the vessel ran aground and was damaged, and was out of commission for some time.   The claim included loss of earnings.

[5]      Judge McDonald also indicated that if reparation was paid it was unlikely any further penalty would be imposed.

[6]      The reparation process then followed an extremely torturous process that was properly criticised by Judge Farish.  A number of hearings were set down that for various reasons did not proceed.  Indeed it appears from the District Court file that this matter has been before the District Court no less than ten times.

[7]      On 25 September Judge Farish was to hear an opposed reparation hearing and to sentence both the accused.  Apparently Judge Crosbie had earlier issued a minute stating that both the appellant and Mr Irving were to be present on 25 September (that minute is not on the District Court file supplied to me).  Mr Irving presented himself.  The appellant, for reasons that are unclear, did not.

[8]      The additional information before this Court that was not before Judge Farish is an extensive affidavit from Mr Alvin Smith.  He is a boat builder operating a firm known as Miller and Tunnage in Dunedin.  He has 36 years’ experience building and

reconditioning  vessels.     He  was  engaged  by  the  defendants  to  provide  an independent assessment of damage that was said to have occurred to the boat in question.   He carried out an extensive investigation and spoke to all the relevant parties, including mechanics, harbourmaster, and the owner of the vessel.   He considered $15,000 was a fair amount to settle with the owner of the vessel.  On 25

September, instead of an opposed reparation hearing, discussion took place which led to the boat owner accepting $17,000 to resolve all matters.  It is apparent to me, reading Mr Smith’s affidavit, that the boat owner was claiming unjustifiable amounts in reparation.   So while Judge Farish was rightly critical of the delays that took place, Mr Smith’s affidavit indicates that all of the blame for that should not be sheeted to the appellant and his co-accused.

[9]      The full amount of reparation has now been paid.  The Crown and Ms Vidal agree that I should make an order that of the sum remaining in Aspinall Joel’s trust account, $8500 should be paid to Mr Irving who, on the Judge’s order, paid the full reparation.

[10]     The Judge noted that Mr Irving was fortunate that Judge McDonald had indicated that reparation would be the only penalty.  Obviously, with reluctance, he was convicted and ordered to pay reparation only.

[11]     The Crown accept that on a parity basis, provided the appellant paid his share of reparation, no further penalty should be imposed on him.  The Crown also did not seek to enforce the warrant to arrest, and given the somewhat unusual circumstances of this case, accepted that the appeal relating to the warrant should also be allowed.

[12]     Accordingly, Mr K   is convicted and order to pay $8500 to Mr Irving. The balance of the funds held by Aspinall Joel may now be disbursed.  The warrant for arrest is quashed.

[13]     I reiterate that the circumstances before this Court were completely different to those in front of Judge Farish.

Solicitors:
Queenstown Legal Chambers, Queenstown

Crown Solicitor, Invercargill