Quirke v Police - [2018] NZHC 2072

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000048

[2018] NZHC 2072

BETWEEN
EDWARD JAMES QUIRKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2018-409-000049

BETWEEN

CLAIRE ELIZABETH QUIRKE
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 August 2018

Appearances:

AMS Williams for Appellants H F McKenzie for Respondent

Judgment:

14 August 2018

JUDGMENT OF GENDALL J

Introduction

[1] The appellants, Claire Quirke (Mrs Quirke) and Edward Quirke (Mr Quirke), are a married couple who face multiple charges of accessing a computer system for dishonest purposes and theft of over $1.4 million from Mrs Quirke’s mother, Shirley Milligan (Mrs Milligan). They have pleaded not guilty and have elected trial by jury.

[2] On 17 May 2018, Judge Kellar in the District Court declined to grant interim name suppression under s 200(2)(a) of the Criminal Procedure Act 2011. Mr and Mrs

QUIRKE v NZ POLICE [2018] NZHC 2072 [14 August 2018]

Quirke appeal that decision on the ground that the Judge was wrong to find that publication of the appellants’ names would not cause extreme hardship to the appellants or the appellants’ employees.

Background facts

[3] On 1 August 2016, Mrs Milligan’s husband Robin Milligan (Mr Milligan) (Mrs Quirke’s father) passed away. Mrs Quirke, it seems, had been given access to bank accounts to assist her mother, Mrs Milligan, and was helping her at the time. Mrs Milligan became the sole executor and beneficiary of her late husband’s estate on 1 September 2016.

[4] According to the summary of facts, between 1 August 2016 and 14 December 2017, the appellants accessed bank accounts belonging to Mr Milligan (under the names of “Robin B Milligan” and “Milligan’s Radio (1972) Limited”) without authority 92 times. The total amount withdrawn and transferred into the appellants’ bank accounts was $1,403,500, with individual withdrawals varying between $900 and $40,000. Mrs Milligan discovered these unauthorised withdrawals/transfers in January 2018.

[5] The majority of the money from the accounts comprised the sale of one of Mr and Mrs Milligan’s houses, and two term deposits.

[6] The police say their enquiries have determined that between 1 August 2016 and 14 December 2017, Mr Quirke spent approximately $569,174 on gambling,
$566,752.81 on money transfers, $122,865 on assets and $121,990 on ATM withdrawals.

District Court decision

[7] In his decision, Judge Kellar noted first that Mrs Quirke and, to a much lesser extent, Mr Quirke have health difficulties which have been exacerbated by these proceedings. Both Mr and Mrs Quirke are involved, too, in businesses they operate. It was noted that they expressed concern about the effect publication of their names would have on the reputation of their businesses and the consequent possible effect

both on their income and on their employees. The appellants had suggested that publication of their names would result in irreparable damage to their businesses, it would seriously affect their ability to earn a living, it would affect their health and cause extreme hardship to their employees.

[8] In his…

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.

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Details

Case: [2018] NZHC 2072
Decision Date: 14 August 2018

CaseChat Overview and Summary

The appellants, Claire Elizabeth Quirke and Edward James Quirke, appealed against a decision of the District Court to decline their application for interim name suppression. The appellants face multiple charges of accessing a computer system for dishonest purposes and theft of over $1.4 million from Mrs Quirke’s mother, Shirley Milligan. The appellants pleaded not guilty and had elected trial by jury. On 17 May 2018, Judge Kellar in the District Court declined to grant interim name suppression under s 200(2)(a) of the Criminal Procedure Act 2011, on the basis that publication of the appellants’ names would not cause extreme hardship to the appellants or the appellants’ employees.

The appeal raises the issue of whether the District Court erred in finding that the appellants had not satisfied the threshold of extreme hardship for the purposes of s 200(2)(a) of the Criminal Procedure Act 2011, and therefore declined to grant interim name suppression. The appellants argued that publication of their names would adversely affect Mrs Quirke’s mental health and would cause irreparable damage to both of their businesses, which would seriously affect their ability to earn a living and it would affect their health to such an extent as to amount to extreme hardship.

The court held that the threshold of extreme hardship was not made out. Mrs Quirke, it appears, is not suicidal, is on medication, and has the support of multiple health professionals and her husband. The court found that there were sufficient support mechanisms in place to mitigate any risk posed by publication of her name. The appellants’ businesses also would likely remain intact despite publication, as can the wider reputation of their businesses. The Court still has a discretion whether to suppress the appellants’ names, and the starting point of the balancing test is the value of open judicial proceedings. The victim of the alleged offending, Mrs Milligan, was present in Court and wanted publication to occur. The Court was satisfied that the public interest in open justice should prevail. The appeal was dismissed. Interim name suppression was refused, and any interim name suppression order that may have been made was lifted.

Orders