Morely v Police - [2018] NZHC 1103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-087

[2018] NZHC 1103

BETWEEN
KENNETH MORELY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Appearances:

J Grainger for Appellant

J J Rhodes for Respondent

Judgment:

18 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 18 May 2018 at 11am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker, Auckland Public Defence Service, Auckland

MORELY v NEW ZEALAND POLICE [2018] NZHC 1103 [18 May 2018]

Introduction

[1] Kenneth Morely appeals against his conviction for breaching a returning offender’s order imposed on his return to New Zealand following his deportation from Australia in March 2017. The conviction was for breaching a condition not to associate with his adult partner. Mr Morely says that condition was unreasonable and unlawful so the conviction cannot stand.

[2] After initially opposing Mr Morely’s appeal, the Crown filed a memorandum dated 9 May 2018 in which it conceded that on the facts of the case the appeal should be allowed and the appellant’s conviction quashed. Upon reading the submissions of Mr Grainger, counsel for Mr Morely, and the Crown memorandum, on 14 May 2018 I issued a Minute vacating the hearing and said I would make a decision on the papers.

Background

[3] Mr Morely was born in New Zealand on 14 June 1985 but at the age of four was taken by his adoptive parents to Australia where he has spent most of his life. It seems from an early age, Mr Morely got himself into trouble, first at school and then with the police. By the time he was deported, he had racked up 79 convictions for a variety of offences, some for illegal sexual activities. The two index offences, which led to the order being imposed on his return to New Zealand, were:

(a)Having carnal knowledge of a girl under 16 years of age, dating from 1999, for which Mr Morely received a sentence of 18 months’ imprisonment. That sentence was suspended for 2 years after Mr Morely had served 4 months of the sentence.

(b)Rape, dating from approximately 2015, for which Mr Morely received a sentence of 2 years, 9 months and 15 days’ imprisonment, to be suspended for 4 years after serving 16 days of the sentence.

[4] Upon his return to New Zealand in March 2017, Mr Morely was made subject to a returning offender’s order, to run for 12 months from 15 March 2017. Pursuant to s 25(b) of the Returning Offenders (Management and Information) Act 2015, the

order was subject to the standard release conditions in s 14(1)(b) to (i) of the Parole Act 2002. Section 14(1)(h) of the Parole Act stipulates:

(h) the offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate:

[5]…

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 Morely v Police

Details

AGLC: Morely v Police [2018] NZHC 1103
Case: [2018] NZHC 1103
Decision Date: 18 May 2018

CaseChat Overview and Summary

Kenneth Morely appeals against his conviction for breaching a returning offender’s order imposed on his return to New Zealand following his deportation from Australia. The conviction was for breaching a condition not to associate with his adult partner. Mr Morely says that condition was unreasonable and unlawful so the conviction cannot stand. The Crown conceded that on the facts of the case the appeal should be allowed and the appellant’s conviction quashed. The judge issued a minute vacating the hearing and said he would make a decision on the papers. The legal issues the court was required to decide were whether the non-association condition was unlawful and, if so, whether Mr Morely’s appeal should be allowed and his conviction quashed. The court found that the non-association direction was not reasonable and was not a justified limitation in terms of s 5 of the Bill of Rights Act. It follows that the condition was unlawful. The conviction cannot stand and the conviction and sentence imposed on Mr Morely for breaching the non-association condition of the returning offender’s order imposed on his return from Australia in March 2017 are quashed.

Orders