Mayer v The Queen - [2011] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA829/2010
[2011] NZCA 36

BETWEEN MALCOLM DUNCAN MAYER
Applicant

AND THE QUEEN
Respondent

Hearing: 16 February 2011

Court: Stevens, Potter and Miller JJ

Counsel: G N Bradford and B T Lauaki for Applicant
B D Tantrum and M R Walker for Respondent

Judgment: 25 February 2010 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal against a pre-trial ruling refusing to suppress the name of the applicant is dismissed.
BThe interim order for name suppression made by Judge Mathers on 7 December 2010 is discharged.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

The applicant, Malcolm Mayer, seeks leave to appeal against a pre-trial ruling made by Judge Mathers in the District Court in which he was denied continued name suppression pending criminal proceedings.[1] The respondent contends that such leave should be refused, particularly as the applicant’s name is already in the public arena and no proper grounds for suppression have been made out.

Factual background

[1] R v Mayer DC Auckland CRI-2010-004-8862, 7 December 2010.

The applicant is being prosecuted by the Serious Fraud Office and has been charged with 62 counts of fraud: 26 counts of dishonestly using a document; 26 counts of obtaining by deception; and 10 counts of using forged documents. His alleged offending concerns property transactions and the related pursuit of mortgage funds. The trial is scheduled to commence on 25 July 2011.
The applicant’s case has already attracted media attention, in which he was a participant. In 2009, prior to being arrested, he spoke with a reporter from the Sunday Star Times. This led to a front page article titled “The $50m swindler: I confess”.[2] The applicant gave this interview on the advice of another person and has since argued that he was to some extent misled by that person. He has also received further media attention in the Sunday Star Times and in The National Business Review. It is in this context that the applicant seeks continued name suppression.

Procedural history

[2]Tony Wall “The $50m swindler: I confess” Sunday Star Times (New Zealand, 6 September 2009) at A1.

A lengthy history precedes this application for leave. Name suppression has remained in place throughout in order to protect the applicant’s appeal rights. In May 2010, Judge Simpson granted the applicant name suppression until the opening of the trial.[3] The Judge considered that there were factors outweighing the principle of open justice in this case, such as the applicant’s personal safety and right to a fair trial, which may be prejudiced by a large amount of adverse publicity.[4]
[3]Serious Fraud Office v Mayer DC Auckland CRI-2010-004-8862, 31 May 2010 at [15].
[4]At [5], [9].
The Serious Fraud Office appealed this decision to the High Court. Venning J allowed the appeal and found that Judge Simpson erred by taking into account an irrelevant consideration, namely that of intimidation.[5] The Judge was also wrong to make an order for name…

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 Mayer v The Queen

Details

AGLC: Mayer v The Queen [2011] NZCA 36
Case: [2011] NZCA 36
Decision Date: 25 February 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether Malcolm Mayer could appeal a decision by Judge Mathers to deny his application for a continued name suppression pending criminal proceedings. The applicant sought to appeal a pre-trial ruling that refused to suppress his name. The respondent opposed the application for leave to appeal. The Court had to decide whether the application for leave to appeal was frivolous or vexatious, and whether the applicant's name should continue to be suppressed pending the criminal proceedings. The Court found that the applicant's application was without merit and dismissed the application for leave to appeal. The Court concluded that there was no basis for ongoing suppression of the applicant’s name, and discharged the interim suppression order made by Judge Mathers on 7 December 2010.

Orders