Polosak v The King - [2023] NZCA 40

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA496/2022
[2023] NZCA 40

BETWEEN	CASSANDRA POLOSAK Applicant
AND	THE KING Respondent

Court:	Gilbert, Ellis and Davison JJ
Counsel:	R J T George for Applicant B So for Respondent
Judgment: (On the papers)	7 March 2023 at 9.30 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal against the refusal to grant a discharge without conviction is declined.
BThe application for leave to bring a second appeal against the refusal to grant name suppression is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Ms Polosak pleaded guilty to representative charges of posting digital communications with intent to cause harm, use of a telephone to send offensive text messages and emails with intent to offend, and breaching a protection order.
Ms Polosak pleaded guilty to these offences. Judge M J Callaghan declined Ms Polosak’s application for a discharge without conviction.[1] The Judge sentenced her to three months’ community detention and ordered her to pay reparation of $1,000.[2] The Judge also declined Ms Polosak’s application for permanent suppression of her name.[3]
[1]Police v Polosak [2022] NZDC 7685 [District Court judgment] at [37].
[2]At [44]–[45].
[3]At [41].
Ms Polosak appealed to the High Court against the refusal to discharge her without conviction and for permanent name suppression. The appeal was dismissed by Dunningham J on 25 August 2022.[4]
[4]P v Police [2022] NZHC 2131 [High Court judgment].
Ms Polosak now applies for leave to bring a second appeal. She contends that the gravity of the offending was not correctly assessed, and the Courts below failed to consider three of the consequences of the convictions. She maintains that she will suffer extreme hardship if her name is not suppressed. Ms Polosak argues that a miscarriage of justice will occur if leave is not granted for a second appeal.

The facts

Ms Polosak was in a relationship with the complainant until he terminated it in January 2021. The summary of facts to which Ms Polosak pleaded guilty relevantly reads:
[Ms Polosak] then purchased more SIM cards, cell phones, created new email addresses, and Facebook accounts for her use to send anonymous messages.
CAUSING HARM BY POSTING COMMUNICATION
On 29 January 2021 [Ms Polosak] used a fake Facebook account and sent messages to [the complainant’s employer] … She told [the employer] that the [complainant] was under Police investigation for inappropriately touching girls at his bar, and while this was occurring, she wouldn’t be going back to his bar. [The employer] messaged her back asking for further information but was sceptical of the allegation.
On 30 March 2021 [Ms Polosak] started to post the same allegation on various public Facebook music pages … [the complainant] was associated with. She also mentioned [the bar] and that they are covering this matter up. These posts were seen by numerous members of the public causing [the complainant] serious emotional distress.
OFFENSIVE USE OF TELEPHONE
Between … 11…

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 Polosak v The King

Details

AGLC: Polosak v The King [2023] NZCA 40
Case: [2023] NZCA 40
Decision Date: 7 March 2023 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Cassandra Polosak, the applicant, sought leave to bring a second appeal against the High Court's decision to refuse her application for a discharge without conviction and for permanent suppression of her name. The respondent, The King, opposed the application. The Court of Appeal, consisting of Gilbert, Ellis, and Davison JJ, heard the application on the papers and delivered its judgment on 7 March 2023. The key legal issues in this case were whether the Courts below erred in their assessment of the gravity of Polosak's offending, in considering the consequences of her convictions, and in determining the likelihood of extreme hardship if her name was published.

The Court of Appeal found that the Courts below had carefully assessed all relevant factors and applied well-established principles in determining whether it would be appropriate to grant Polosak a discharge without conviction. The Court found that Polosak's offending was highly premeditated and malicious, causing significant distress to the complainant. The Court held that the District Court Judge had correctly assessed the gravity of the offending and that the High Court Judge was correct in rejecting Polosak's arguments on appeal. Furthermore, the Court found that the consequences of Polosak's convictions were not out of proportion to the gravity of her offending, and that the Courts below had correctly determined that publication of her name would not be likely to cause her extreme hardship.

The Court of Appeal held that Polosak's application for leave to bring a second appeal against the refusal to grant a discharge without conviction and for permanent suppression of her name should be declined. The Court found that the proposed second appeal did not raise any issue of public importance and that nothing put before the Court suggested that a miscarriage of justice may have occurred. The application fell far short of meeting the high threshold required to justify the grant of leave for a second appeal.

In conclusion, the Court of Appeal declined Polosak's application for leave to bring a second appeal against the High Court's decision to refuse her application for a discharge without conviction and for permanent suppression of her name. The Court found that the Courts below had correctly assessed the gravity of Polosak's offending, the consequences of her convictions, and the likelihood of extreme hardship if her name was published. The Court held that the proposed second appeal did not raise any issue of public importance and did not meet the high threshold required to justify the grant of leave for a second appeal.

Orders