M v Police - [2015] NZHC 1975

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011 APPLIES UNTIL
1 SEPTEMBER 2015 UNLESS ANY FURTHER ORDER FOR SUPPRESSION IS MADE.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-53 [2015] NZHC 1975

BETWEEN
M

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 August 2015

Appearances:

P Mitchell for the Appellant
A R Garrick for the Respondent

Judgment:

19 August 2015

JUDGMENT OF MALLON J

Introduction

[1] The appellant has pleaded guilty to two counts of dishonestly using a document to obtain a pecuniary advantage.1 He is to be sentenced in the District Court on 1 September 2015. He intends to apply for permanent name suppression at that time. He appeals against a decision declining him interim name suppression.2

Background

[2] The appellant was employed as a manager with a national organisation from
2004 to November 2013. His duties included processing authorised invoices for work carried out by relief employees in the area for which he had responsibility.

1 Crimes Act 1961, s 228(b) (maximum penalty of seven years imprisonment).
2 Police v M [2015] NZDC 14971.

M v NEW ZEALAND POLICE [2015] NZHC 1975 [19 August 2015]

Over the course of several months during 2013 the appellant created 42 false invoices for a total amount of approximately $50,000 for relief work which had not been carried out. The appellant received payment on these invoices either directly into his bank account or via a transfer from the bank account of another employee who had been told a false story as to the reason for these payments.

[3] The appellant was charged and was to first appear in court on 7 July 2015. His counsel was not available that day. Counsel accordingly arranged an adjournment by consent to 4 August 2015 and the appellant was not required to attend.3 On 4 August 2015 the appellant entered a guilty plea and was remanded for sentencing on 1 September 2015. At the time of entering his guilty plea an oral application was made for interim name suppression. The Judge indicated that the application would be declined. Counsel for the appellant sought the opportunity to file brief submissions and the application was adjourned for that purpose to 5 August
2015 at 9.30am.

[4] Counsel prepared written submissions with urgency, amongst other matters he had to attend to that day, and filed them on the afternoon of 4 August 2015. The submissions explained that the application was made on the basis that publication of the appellant’s name would cause him and his family extreme hardship4 and that the victim of his previous offending would suffer undue hardship.5 The submissions said that, in support of the application, an intended affidavit from the appellant
would state the following:

a.I live with my partner and child (aged 6 years). Both are financially dependent on me.

b.I am currently employed full time as a manager in a national organisation in Wellington, and have been for…

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 M v Police

Details

AGLC: M v Police [2015] NZHC 1975
Case: [2015] NZHC 1975
Decision Date: 19 August 2015

CaseChat Overview and Summary

The appellant in this case has pleaded guilty to two counts of dishonestly using a document to obtain a pecuniary advantage. The appellant has appealed against a decision declining him interim name suppression. The court was required to decide whether the appellant was entitled to an interim order for suppression of his name, address, occupation or identifying particulars. The court's reasoning was that the appellant had submitted that if the interim order was made, he would be in a position to pay a substantial sum to his former employer immediately by way of reparation. It was said that if an interim order was not made, the appellant would likely lose his job. The court found that the Judge declined interim name suppression on a mistaken assumption and allowed the appeal. The appellant is granted interim name suppression until the appellant’s appearance on 1 September 2015 unless the District Court on that day makes any further order for suppression.

Orders